ADVERSE REPORT OF THE PARLIAMENTARY LEGAL COMMITTEE
ON THE CRIMINAL PROCEDURE AND EVIDENCE AMENDMENT BILL, [H.B. 2, 2015]
In pursuit of its constitutional mandate as provided for in section 152(2) of the Constitution of Zimbabwe, the Parliamentary Legal Committee met on the 20th of October 2015 at 1000hrs to consider the Criminal Procedure and Evidence Amendment Bill [H.B. 2B, 2015]. After deliberations the Committee resolved that an adverse report be issued in respect of clause 30 of the Bill amending section 121 of the CAP 9:07. In compliance with Standing Order 32 (3), members of the Committee legally qualified as envisaged by section 152(2) of the Constitution unanimously agreed (present were Honourables Samukange, Chasi, Gonese and Ziyambi) the Bill contained provisions that, if enacted would violate the Constitution. The adverse report was issued due to the following considerations:
Clause 30 Amendment of section 121 of CAP 9:07
(Appeals against decisions regarding bail)
Section 121(3) states that──
“where a judge or magistrate has admitted a person to bail and the judge or magistrate is notified immediately after the decision that the Prosecutor- General or a public prosecutor wishes to appeal against the decision, the judge or magistrate shall order the person to remain in custody until the appeal is determined:
Provide that the person shall not remain in custody under such an order for longer than forty- eight hours unless, within that period, the Prosecutor- General or public prosecutor lodges the appeal.”
This amendment responds to the Constitutional ruling of the case of Fanuel Kamurendo and Others v S CCZ 84/ 2015. In which the court invalidated section 121 (3) of the Criminal Procedure and Evidence Act. It was ordered that section 121 (3) violates section 13(1) and 18(1) of the former Constitution which are iterated in section 49 and 50 of the Constitution respectively. Section 50(1)(d) in particular provides that “any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention”. Limitations are found in sections 86 and 87 of the Constitution with regard to rights and freedoms and public emergency. These are presumed to have been considered by the Court in determining whether or not a person is a suitable candidate for bail. The amendments have now amended the provision by reducing the period of committing suspects to custody from seven days to forty- eight hours, within which the Prosecutor-General is permitted to lodge an appeal and if he or she does so it is uncertain thereafter as to how long such a detained person will be further detained pending the execution of the appeal. This is in violation of section 49 of the Constitution which speaks to the right to liberty.
Due to the aforesaid, the Committee resolved on a majority of 3:0 to issue an adverse report on the Bill.
Hon. J. Samukange
PARLIAMENTARY LEGAL COMMITTEE