The government has taken a different approach to the countrys magistrates than it has with the judges. While there is no evidence that the government has attempted to purge the magistracy or replace independent magistrates with ruling-party sympathizers, available information points to both threats and intimidation intended to cow magistrates into toeing the ruling party line and to the misuse of judicial procedure to circumvent their authority.51
The governments strategy has been effective in smaller towns and rural areas where ZANU-PF formerly had total control. Human Rights Watch learned of attacks on magistrates by ZANU-PF members and its allies in small towns such as Bindura, Rusape and Gutu. But the governments strategy has not worked well in the two major cities, Harare and Bulawayo, where the majority of junior magistrates still display some independence.52 There, magistrates routinely grant bail to detained MDC activists, contrary to the wishes of the government.53
As a counter-measure, government prosecutors often invoke section 121 of the Criminal Procedure and Evidence Act (CPEA), which provides prosecutors with the opportunity to file a notice of intention to appeal against a bail ruling.54 By noting an intention to appeal, a magistrates order to release a suspect is immediately suspended, giving the prosecution seven days to prepare an appeal, during which time the accused must remain in police custody.55
According to magistrates and lawyers whom Human Rights Watch interviewed, in rural areas the government does not now take chances when MDC supporters and activists are arrested. It dispatches a delegation of partisan senior magistrates and prosecutors from Harare to handle political cases wherever they occur.56 When police arrested Ian Kay, an MDC member of parliament for Marondera Central province, the resident prosecutor for Marondera instructed the police to release him. However, a senior prosecutor sent from Harare intervened and insisted that Kay should be charged and detained.57
In a case that demonstrates the perils faced by an impartial judicial officer, Musaiona Shortgame, a resident magistrate in Gutu, Masvingo province, was harassed and victimized by government agents for allegedly handing down judgments viewed by the government as contrary to the result it was seeking.58 The persistent persecution of Shortgame culminated in an attack on his property on April 21, 2008, when unidentified persons entered his homestead and set fire to his vehicle. The attack followed threats from ZANU-PF supporters in the area.59
In Bindura, Mashonaland Central province, on June 23, 2008, a group of ZANU-PF youths severely assaulted senior magistrate Felix Mawadze as he left a supermarket. Their stated reason for the assault was that he granted bail to detained MDC activists accused of political violence.60 To date no arrests have been made in this case, even though police reports were filed.61
Dr. Lovemore Madhuku told Human Rights Watch how some magistrates were persecuting MDC and civil society activists:
Human Rights Watch believes that, in normal circumstances, such as where non-political cases are concerned, prosecutions in Zimbabwe are generally impartial. However, in political cases, there is clear evidence that some prosecutors abuse the law to persecute and harass perceived MDC supporters, particularly in applications for bail.
Section 117 of the Criminal Procedure and Evidence Act states that bail should not be refused unless there is clear evidence that the accused is likely to commit other offenses, interfere with witnesses or abscond.65 Remand procedures and denial of bail should not be used as substitute detention mechanisms.66 Denying bail in order to punish an accused person contravenes the principle that an accused person shall be presumed innocent until proven guilty by a competent court of law. This is enshrined in article 18 of Zimbabwes Constitution and in the ICCPR.67
Contrary to the legal provisions on bail, the Office of the Attorney General has adopted policy and practice in political cases to oppose bail in all circumstances, regardless of the merits of each individual case. According to The Herald, Deputy Attorney General (Criminal Division) Johannes Tomana instructed all prosecutors on May 20, 2008, to ensure, as a matter of policy and as a deterrent to other would-be offenders, that no person accused of committing or inciting political violence should be granted bail.68
Public prosecutors have subjectively used Tomanas directive to deny bail for MDC activists, but to our knowledge never to any ZANU-PF activists accused of political violence. MDC Member of Parliament Eric Matinenga told Human Rights Watch that he applied for bail when he was arrested on May 30, 2008. According to Matinenga, the public prosecutor told the court at the outset that he would oppose bail irrespective of the conditions offered by Matinenga in his application. The public prosecutor allegedly stated that it was the attorney generals official policy that bail in cases of alleged political violence would be opposed regardless of the merits of the application.69 When the magistrate granted Matinenga bail, the public prosecutor immediately invoked section 121 of the CPEA. Matinenga remained in custody pending appeal.
In other cases against civil society activists, the prosecutors did not make reference to the Tomana directive, but appeared to have been guided by it to oppose all bail. Following the arrest of 14 Women of Zimbabwe Arise activists on May 28, 2008, the public prosecutor, Public Mpofu, said that he would oppose granting bail to the accused. When the magistrate ruled in favor of granting bail, Mpofu invoked section 121 of the CPEA and the accused were sent on remand to Chikurubi prison.70
Several magistrates interviewed by Human Rights Watch cited this policy and indicated that the intention was to punish an accused as a deterrent measure.71 For instance, on April 22, 2008, Harare magistrate Gloria Takundwa said, when denying bail to an MDC activist facing political violence charges:
51 Human Rights Watch interview with three former magistrates, Harare, August 29, 2008. All three said they felt compelled to resign following threats to their lives by suspected ZANU-PF supporters and lack of assurances of protection from government.
52 Human Rights Watch interview with serving magistrate, Harare, August 18, 2008: most junior magistrates have not benefited from governments patronage, therefore ensuring some independence in their ranks. However, some senior magistrates were allocated land under the governments land reform program, thus compromising their independence.
53 Human Rights Watch interview with serving magistrate, Harare, August 18, 2008: Our power as magistrates to grant bail has completely been usurped by prosecutors, because the mere noting of an intention to appeal by a prosecutor means that a magistrates power to grant bail is immediately cancelled and the accused is sent to remand prison.
54 Criminal Procedure and Evidence Act, Chapter 9:07, sec. 121 (1).
55 Human Rights Watch interview with a former magistrate, Harare, August 28, 2008.
56 Human Rights Watch interviews with several lawyers, Harare, August 25 and 26, 2008.
57 Human Rights Watch interview with Ian Kay, Harare, August 22, 2008.
58 Joint Appeal by the Law Society of Zimbabwe, Zimbabwe Lawyers of Human Rights and International Commission of Jurists on the situation of lawyers, human rights defenders and civil society organizations, June 2008.
60 Human Rights Watch interview with Shepherd Mushonga, Harare, August 19, 2008.
62 Human Rights Watch Interview with Dr Lovemore Madhuku, Harare, August 18, 2008.
63 Human Rights Watch interview with WOZA Coordinator Jenni Williams and ZINASU President Clever Bere, London, September 16, 2008.
64 McDonald Dzirutwe, Zimbabwes Tsvangirai wants talks, says 600 tortured. Rueters, April 12, 2007. http://www.alertnet.org/thenews/newsdesk/L12205103.htm (accessed November 3, 2008).
65 While section 117 of the (CPEA) sets out conditions for granting bail to an accused, section 121 empowers the prosecutor to overturn the granting of bail by a magistrate; when a prosecutor gives notice of intention to appeal against bail, the effect is to suspend the ruling granting bail pending the noting of the appeal.
66 State vs.Dube (HH 133/89).
67 ICCPR, art 14(2) which states: Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
68 AGs Office gets tough on political violence, The Herald, June 9, 2008.
69 Eric Matinenga vs. Commissioner General of Police and others (HC 3049/08).
70 Report by Legal Practitioners acting for WOZA, report reviewed August 25, 2008.
71 For instance, several rulings in available documents where bail is denied, magistrates have made reference to this policy as authority for their decisions.
72 See State vs. Ranganai Dzinchito (CRB 2796/2008).