Justice Mtshiya grants bail to abductees, cautions State counsel – ZLHR

ZLHR Press Release — High Court Judge Justice November Mtshiya on Wednesday 13 May 2009 granted bail to three political prisoners namely Gandhi Mudzingwa, Kisimusi Dhlamini and Andrison Manyere.

Justice Mtshiya ordered the three abductees to pay US$1 000 in bail money with the Clerk of the Court at the Magistrates Court and to report once a week on Friday at Mabelreign Police Station until the matter is finalised. Justice Mtshiya said if bail money has been retained in terms of Justice Hungwe’s Order of 09 April 2009, such bail should be considered adequate for the purposes of his Order.

The High Court Judge also ordered the three to reside at their Ashdown Park and Mabelreign residences respectively and not to interfere with State witnesses or investigations.

In his nine-page long ruling Justice Mtshiya stressed that though the applicants face serious charges they remain innocent until proven guilty. Justice Mtshiya said there is no justifiable cause to treat the applicants differently from their co-accused who were granted bail on 19 February 2009 by Justice Omerjee and it would not be in the interests of justice to treat the applications differently from their co-accused.

Justice Mtshiya stressed that the principle of equal treatment before the law should be observed and therefore it is in the interests of justice to render equal treatment to all the accused persons.

The High Court Judge said upon the release of the three political prisoners from Chikurubi Maximum Prison on 17 April 2009 on the order of Justice Hungwe, the three did not abscond, even though the charges had not been withdrawn.

Justice Mtshiya said the three did not escape after their release from custody even though there was ample time to arrange their escape and if, as alleged, the crime was a politically motivated crime, there was a great possibility that their political sympathizers would have willingly assisted them to escape.

By adhering to the conditions of bail granted by Justice Hungwe, Justice Mtshiya said the political prisoners had demonstrated that they are good candidates for bail.

Justice Mtshiya said the conduct of the detainees upon their temporary release from prison decimates all the State’s fears such as absconding and committing the same offence.

Furthermore, the extension of bail for the applicants’ co-accused after indictment operates in the applicants favour. Justice Mtshiya noted that the co-accused did not breach their bail conditions and as would have been expected did not collude with the applicants to commit further crimes upon the temporary release.

Justice Mtshiya said apart from the alleged implicating confession from the first applicant, there is no direct evidence linking the applicants to the offences, which confession the three also deny.

Justice Mtshiya said the absence of independent witnesses throws a damp on the State’s evidence. He said the State is relying mainly on the evidence of security personnel. Justice Mtshiya said there is no evidence of a joint scheme/plan by the applicants who in any case appear not to have known each other until they appeared in court.

Justice Mtshiya also cautioned Chris Mutangadura, the State’s Counsel and law officer at the Attorney General’s Office for going against the norms of the High Court. Instead of jointly raising an objection in limine and also addressing the merits of the matter before the court Mutangadura on Friday 08 May 2009 chose to raise a point in limine only without addressing the merits of the matter. Justice Mtshiya said if Mutangadura had adhered to the usual norm, the matter would have been disposed of on 12 May 2009. He said this piecemeal approach to issues that are brought before the Court cannot in any way serve to promote the interests of justice. “Legal practitioners should appreciate that once a Judge is seized with a matter, he/she dictates how the matter should be handled. The common practice of presenting arguments on the issues in limine and on the merits of the case in the same breath should remain the norm.”

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