In an interview with ZBC News Mr Tomana said his office always stands guided by the laws of Zimbabwe whenever handling judicial decisions.
Many commentators are not questioning the validity of the detentions but the abuse of government agencies by the terrorist Zanu PF outfit.
He said the accused have been indicted Under Section 66 of the Criminal Procedure and Evidence Act which provides that the accused shall be indicted after completion of investigations and ahead of a trial.
The MDC activists who include Concillia Chinanzvavana, Jestina Mukoko, Kisimusi Dhlamini, and Andrison Manyere were indicted on Monday and were subsequently detained on Tuesday.
Writing for the Gideon Gono funded website, newzimbabwe.com, Zimbabwean UK based lawyer Dr Alex Magaisa wrote:
What’s the basis of the re-detention?
I understand that the basis upon which Magistrate Catherine Chimhanda made her decision to re-detain Mukoko and others is Section 66 of the Criminal Procedure and Evidence Act [Cap 8:07].
This law provides for the procedure for bringing an accused person to trial before the High Court. This simplified procedure, commonly known as the “direct indict” procedure is a departure from an old procedure which required a preparatory examination in the Magistrates’ Court before indicting the accused person in the High Court for trial.
The types of offences that are tried by the High Court are called “indictable offences”. Thus a person must be indicted – technical language for the formal procedure of charging the person.
Subsection 1 of this provision states that:
“If the Attorney-General is of the opinion that any person is under reasonable suspicion of having committed an offence for which the person may be tried in the High Court, the Attorney-General shall cause written notice to be served on —
(a) a magistrate for the province within which the person concerned resides or for the time being is present; or
(b) any magistrate before whom the trial of the offence could be held in respect of the offence concerned; informing the magistrate of his or her decision to indict the person concerned for trial before the High Court and of the offence for which the person is to be tried.”
Essentially, therefore, all the Attorney General needs to do is to issue a written notice to the magistrate merely informing her that he has made the decision to indict, i.e. to formally accuse a person for trial at the High Court.
The AG must of course state the offence. It is worth noting here that the AG is not asking the magistrate for permission to do so. He is not placing evidence before the magistrate – he is merely ‘informing’ her of his decision and of the offence.
Subsection 2 then states:
“On receipt of a notice in terms of subsection (1), the magistrate shall cause the person concerned to be brought before him or her and, notwithstanding any other provision of this Act, shall forthwith commit the person for trial before the High Court and grant a warrant to commit him or her to prison, there to be detained till brought to trial before the High Court for the offence specified in the warrant or till admitted to bail or liberated in the course of law.”
This means that once the magistrate has received the notice from the AG, she is required to call the accused person to be brought before her court. The provision uses peremptory language, i.e. the magistrate “shall forthwith” commit the accused person for trial before the High Court and also grant a warrant to commit the accused person to prison, where the accused person shall be “detained” until brought to trial or until “admitted to bail or liberated in the course of law”.
This language shows that, once the notice has been issued by the AG, the matter is by and large beyond the magistrate’s control.
In the case of Mukoko and others, all that it took was for the AG to issue the notice to the magistrate, as he did on May 4, 2009. The effect of that notice is to cause the accused persons to be sent to prison and the magistrate does not seem to have any discretion on this – under the provision, she has to grant a warrant for the accused people’s committal to prison.
Under the provisions quoted above, the magistrate has little, if any, power to question the nature and quality of evidence that the AG uses to indict the accused person. That explains why Mukoko’s lawyers are not challenging the legality of what she has done but instead sought to ask for evidence of the political decisions behind the March bail to be heard.
The irony here is that it is the political decisions that have probably caused the AG to issue the present notice that has caused the re-detention. The magistrate’s position would not have changed for the simple reason that she does not have the power.
For the avoidance of doubt, it is important to note that the AG could have done what he has done even on the day that Mukoko and others were released in early March. He could have done it a day later, two days later, indeed any day after their release.
What then has changed? Have they suddenly got enough evidence to give them reasonable suspicion? Perhaps. But there could be another motive, which has little to do with the law.
That the AG chose to do so on Monday, May 4, has to be considered within the context of the on-going political negotiations, which have probably hit a sticky patch.
A new legal roller-coaster
This means that the accused persons, Mukoko and others, now have to restart the whole process of applying for bail, again. We know the tortuous road they have had to travel before. We know the legal bungee-jumps they have been subjected to as they were made to hop from one court to another, all in vain until early March when they got temporary respite.
So what’s the problem? Is it the law? Is it the magistrate? Not quite. It is the same creature I have mentioned in my work before – the “human factor”.
Would it have made a difference under the older version of the law which required preparatory examinations? Perhaps, then again perhaps not – it could simply have added complications.
Those old provisions were removed for a good reason and the justice system is predicated on the basis that the officers of the law, the AG included, will uphold the Constitution and behave in a civilised manner. It is expected that the AG will be fair, reasonable and use the powers he has in a lawful manner, i.e. that there will be no abuse of his authority. The presumptions are misplaced in today’s Zimbabwe.
Now, why surely, must these accused people be sent to prison, two months after getting bail? They have not breached their bail conditions (at least there is no allegation that they have). Given the seriousness of the charges they are facing, one might have thought they would do a runner, especially having been subjected to inhumane and degrading treatment during that initial detention. They did no such thing.
We should also not lose sight of the fact that the current indictment — six months after their initial abduction — indicates very strongly that their initial detention was unlawful. How do you arrest someone on December 4, 2008, (in Mukoko’s case) and spend a whole six months before deciding that there is a “reasonable suspicion” that the person committed an indictable offence, especially given the gravity of the alleged offence?
Meanwhile the activists were released yesterday after the Attorney General consented to bail being granted to all the accused on the back of an agreement between the Attorney General and the defence lawyers that the accused will be available for trial.