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Justice Chikowero’s judgement unmasks rot of Zimbabwe’s criminal justice system

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By FIDELICY NYAMUKONDIWA

IN yet another disappointing court judgement, a Harare High Court judge recently granted bail to Zimbabwe’s most wanted man, Musa Taj Abdul. Justice Benjamin Chikowero’s bail ruling is just but one of the many judgements exposing the rot in the country’s justice system.

The law enjoins a court to strike a balance between the liberty of an accused on one hand and the interests of justice on the other. When news that notorious Musa had been granted bail went viral on social media, people were quick to blame the judge.

The case however took a twist when it emerged that Tapiwa Kusema, the public prosecutor who delt with the case, had actually suggested that the armed robber be granted bail.

After a public outcry, the Prosecutor-General hastened to suspend Kusema for the bail concession. Kusema is said to have been previously suspended on bribery allegations.

One is left wondering why a prosecutor with a controversial history is allowed to handle high-profile cases in a superior court.

In either opposing or consenting to bail, a prosecutor is guided by the police officer investigating the case. A close analysis of leaked court documents leading to the bail granting suggests that the investigating officer was also comfortable with the release of Abdul. Shocking, is it not? The investigating officer ought to be investigated as well.

In what looks like another cover-up stint triggered by public uproar, the police rearrested Abdul for what has been called ‘fresh charges’. This happened before he could pay the bail money. One wonders whether the so-called fresh charges were unknown to the investigating officer at the time of consenting to bail.

In Henrietta Rushwaya’s straightforward smuggling case, the National Prosecuting Authority (NPA) initially consented to bail and then suddenly made a ‘U’ turn after a public outcry.

The Police and the National Prosecuting Authority (NPA), for strange reasons, have once again consented to the granting of bail in an undeserving case. A few weeks ago, bail was vehemently opposed in Hopwell Chin’ono’s Twitter charge. Well, that demonstrates how rot our criminal justice system is.

Who is Musa Taj Abdul?
Before his arrest in August 2020, Musa Taj Abdul popularly known as Musa Mohammed, was probably Zimbabwe’s most wanted man.

He had reportedly been playing cat and mouse with the police for the past 20 years.  In those years, some of his accomplices were reportedly shot dead by the police in pursuit shootouts. 

He was finally arrested together with seven other gang members. At the time of arrest, one of the gang members was a serving member of the police and the other is a former police officer who was sacked for misconduct four years ago.

The gang was arrested for murder and several armed robbery cases committed around Zimbabwe.

Upon arrest, Musa and his colleagues were allegedly found in possession of a pistol, 30 live rounds, a pair of vehicle registration number plates and a balaclava. A balaclava is that kind of mask you see being worn by robbers in the movies.

It has been reported that the police linked Abdul to up to 53 armed robberies.

Compelling reasons for denying bail
In determining whether or not a person should be granted bail, the police and court officials must be guided by the law and nothing else.

The supreme law of Zimbabwe, the Constitution, makes bail a constitutional right. It mandates that detained persons “be released unconditionally or on reasonable conditions,… unless there are compelling reasons justifying their continued detention.”

A non-exhaustive list of the compelling reasons is to be found in the Criminal Procedure and Evidence Act (CPEA). In terms of this law, suspects must be denied bail if their release will likely threaten the safety of the public.

That the release of Abdul endangers public safety is a no brainer.

If there is a likelihood that an accused will commit further crimes, bail should not be granted. Abdul has been committing serious crimes for the past 20 or more years.

He has been linked to over 50 armed robberies. The likelihood of him committing further crimes is indubitable. The CPEA also provides that if there is a likelihood that accused persons will escape they cannot be granted bail.

Sufficiency of evidence, seriousness of the offence and likely sentence can induce a suspect to flee. Will a suspected armed robber who has been on the run for the past two decades sit back and wait to be tried? He would be a fool if he does.

The law also provides that bail should not be granted if there are chances of witness interference or evidence tampering.  

Most importantly, the law provides that a magistrate or a judge must not grant bail to an accused person if such granting will “undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system.”

It is the duty of the public prosecutor, with the assistance of the police to convince the court that a suspect like Musa is not a good candidate for bail. If the prosecutor does not adduce enough evidence to oppose bail, a court may be left with no choice but to grant bail.  

The CPEA also states that the court should consider “whether the release of an accused will undermine or jeopardise public confidence in the criminal justice system”.

There is no doubt that releasing Abdul back into the community reduces the criminal justice system into a joke.

Rot of the system
Justice Chikowero’s judgement opens a can of worms. On the face of it, the case exposes the rot in the manner in which some magistrates and judges handle matters brought before them. 

The case also reflects on poor case management by some scallywag police officers and officers of the NPA.

Abdul was arrested in late August 2020, allegations being that he committed a series of offences, some dating back to as far as 20 years ago. Close to four months later, he was granted bail.

Ideally, at least some of the cases should have been finalised within the four-months-period.

Considering the nature and seriousness of the offences, by now he should be serving imprisonment for some of the offences.

Was the delay in trying Abdul necessitated by the fact that investigations are still in progress? Is it because some witnesses could not be located?

Could it be that the dockets are not yet ready for trial and are still held by the police? Could it be because the NPA is still perusing the dockets?

While it is a fact that some cases are complex, the Constitution guarantees the right to a fair trial within a reasonable time.

It is an open secret that hundreds of suspects have been on remand for long periods and without any prospects of timeous prosecution. 

In some cases, courts end up striking off the cases from remand. What happened to Ignitius Chombo’s case? The writer is reminded of the old adage, “justice delayed is justice denied.”  

If the state unjustifiably consents to bail, the court is duty bound to question the concession and deny bail where necessary.

There are a number of cases in which the latter has happened. Abdul’s case seems to be one of such cases in which the judge should have queried the state’s concession.

When alleged serious offenders like Musa Taj Abdul are granted bail, that does not only impede the smooth running of the wheels of justice.

It jeopardises public confidence in the whole criminal justice system. Justice Chikowero’s judgement sets a very bad precedent for Zimbabwe’s jurisprudence .

The NPA must urgently appeal to the Supreme Court. This is one of the many cases for which the Zimbabwe Anti-Corruption Commission must spring to action. Heads must roll!

Fidelicy Nyamukondiwa is a former public prosecutor who writes here in his personal capacity. He is the founding director for Fauna and Flora Zimbabwe (FaFloZim). Contactable on 0718975244/fidelnyams on Twitter 

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