Justice Hungwe on Friday 16 October 2009 granted an Urgent Application made by Bennett’s lawyer and ZLHR member, Harrison Nkomo for reinstatement of bail, which had been unlawfully disregarded by state agents on Wednesday 14 October 2009 when he was recommitted to Mutare Remand Prison following his indictment for trial in the High Court by Mutare Provincial Magistrate Lucy Mungwari.
The State representative, Michael Mugabe (a law officer in the Attorney Generals Office) immediately attempted to invoke Section 121 of the Criminal Procedure and Evidence Act (CPEA) which the AGs Office has religiously abused to suspend bail orders granted by the courts in favour of legitimate human rights defenders and political activists.
However Nkomo argued that Section 121 of the CPEA can only be invoked where a fresh bail order is made by a High Court Judge and not under the circumstances in which a bail order already exists. This was the case in Bennetts matter, where the Supreme Court had granted bail on 11 March 2009 and Justice Hungwe was asked to adjudge the lawfulness of the revocation of the bail order.
Justice Hungwe then ruled that Section 121 of the CPEA cannot be invoked where the State wishes to appeal a point of law. The judge cautioned Mugabe not to throw invocations around here and there, as this practice only made a fool of him (Mugabe).
As a result of Hungwe Js judgment, Bennett’s existing bail order stands, and he should be released in terms of this Supreme Court order.
The terms and conditions imposed by the Supreme Court when it granted him bail in March were such that he deposited the sum of US$5 000 with the Clerk of the Mutare Magistrates Court, is continuing to reside at his Harare residence and surrendered the title deeds of his Stand No. 901 Umtali Township property to the Clerk of Court. Bennett also surrendered his passport, agreed not to interfere with State witnesses, and before his incarceration was reporting at the Harare Central Police Stations Law and Order Section three times a week, namely Monday, Wednesday and Friday between the hours of 0600 and 1800 hours.
ZLHR condemns the actions of the Attorney Generals representative in the proceedings culminating in todays positive judgment. It is clear that law officers are failing or refusing to exercise their discretion and their minds to the laws of Zimbabwe in order to make reasoned and justifiable decisions. They continue whether willfully or negligently – to misinterpret the laws and to utilize nefarious provisions of the criminal law such as Section 121 (the constitutionality of which is currently being challenged) as if they were automatons, rather than professional legal officers who are able to apply their minds to the facts and laws relating to cases, particularly those of a political nature.
Whilst ZLHR is heartened by todays events, we are under no illusion as to the disrespect and contempt which is regularly shown by representatives of the executive to orders made by the judiciary, and it remains to be seen whether there will be compliance with Justice Hungwes order. We look forward to Bennetts immediate release, and urge authorities to refrain from further persecuting him and others through abuse of the law.Post published in: Politics