Prof. Madhuku, Adv. Mpofu square off over Mupfumira bail refusal

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HARARE – Top lawyers Professor Lovemore Madhuku and Advocate Thabani Mpofu have differed sharply about the application of Section 32 of the Criminal Procedure and Evidence Act by a court on Saturday to further detain Tourism Minister Prisca Mupfumira for 21 days.

The law provides that the Prosecutor General, in instances where a case is complex and there is a fear that the suspect if released could tamper with evidence, can issue a certificate applying for further detention of a suspect for 21 days, which if granted by a magistrate cannot be reversed by any court.

Madhuku, whilst admitting the little used piece of law was most likely unconstitutional when placed alongside Section 50 of the Constitution which says bail is a right, insisted it was in force until set aside by the Constitutional Court.

The University of Zimbabwe constitutional law lecturer also said Mupfumira, who is facing seven counts of criminal abuse of office over US$95 million allegedly siphoned out of the National Social Security Authority (NSSA), could not appeal for bail within the 21 days.

But Mpofu, one of Zimbabwe’s top legal minds, any law which is inconsistent with the new Constitution adopted in 2013 is invalidated automatically.

Here is what the two lawyers said:

PROFESSOR LOVEMORE MADHUKU: Section 32 of the Criminal Procedure and Evidence Act provides that when you appear before a court within the 48 hours, there are two sides to it. The lawyers for the accused person may seek bail but on the other hand the state has a provision that allows them to apply to a magistrate for the further detention of that person for 21 days. Within that 21-day period, if it is accepted by a court, the person cannot apply for bail and no court can give them bail.

That provision has been in the statutes. The state in this case has been very creative in going down to look at those provisions.

What it requires for that to happen is that the Prosecutor General or someone on his behalf must issue a certificate which says that this person is facing a very serious offence that is specified which has to do with corruption, fraud and so forth, and that the matter is either very complex or that evidence would be very difficult to gather if the person were to be released either on bail or some other provision. That is the circumstance.

The magistrate must be satisfied that that would be the case. The magistrate must form what the law says is a reasonable opinion that there is a reasonable suspicion that that would be the case. In that case, if the order is given, then the person for 21 days cannot apply for bail.

What it means is that this provision, Section 32 of the Criminal Procedure and Evidence Act is part of the law. It may not be constitutional, but the law says that until that provision is set aside as being unconstitutional by the Constitutional Court, then it is presumed to be the law of the country. There is what is called presumption of constitutionality. Every piece of legislation, every Act of Parliament is presumed to be constitutional until it is set aside by the Constitutional Court. So this particular section, Section 32 of the Act, is presumed to be constitutional until it is challenged. Perhaps this is an opportunity for people to challenge that particular section. But that is the law. After the 21 day period, there may be another application for further detention but she would now be allowed to apply for bail after 21 days.

ADVOCATE THABANI MPOFU: The position taken by Professor Lovemore Madhuku cannot possibly be correct and requires an immediate response in the national interest.

In terms of the constitution, which is the supreme law of the land and by which any law inconsistent with it is invalidated automatically and invalidated upon the coming in of the new constitution (in 2013).

A person who is has been arrested and who appears in court for the first time is entitled to their immediate release with or without conditions. That is the right that sets in upon the arraignment of a person before a court. They must be released. That’s why in terms of the procedure brought by the new constitution no accused person has an obligation to apply for bail. The accused person simply spends up in court and indicates their desire to be admitted to bail. It’s for the state to either consent or oppose bail and in that regard it’s the state that must place before the court exceptional considerations which justify the continued detention of an accused person.

So, upon the arraignment of an accused person that person must be admitted to bail with or without conditions. The constitution then contemplates the fact that there may be deserving cases, and calls those exceptional cases. It says in those deserving cases that are exceptional by nature, there can be continued detention. What are those cases? Those are cases where the state manages to show, manages to prove that an accused person is not entitled to be released on bail.

Now, whilst it is true that Section 32 of the Criminal Procedure and Evidence Act provides for this 21-day nonsense, the position which has already been taken by the Constitutional Court is that every law which is inconsistent with the Constitution becomes automatically null and void and became void upon the adoption of the new Constitution. There is actually no need for an order of court declaring the invalidity of the law, the law is invalid. What that means is that the state could not have legitimately and lawfully applied for the detention of the lady on whose circumstances this issue has now arisen for debate.

What the state did was unlawful, what the state did is reviewable, what the state did ought to be set aside, and set aside urgently in the national interest.

If the state believes that it has a very strong case against this lady what it must do is to set and establish a basis upon which the court can deny her bail, but to say she should not be given an opportunity to apply for bail is contrary to our constitutional order, it is contrary to our constitutional culture, it is contrary to law. It does not matter that one might not like her, but that kind of illegality must not be allowed.

Source: Zimlive