Of the Portfolio Committee on Justice Legal and Parliamentary Affairs

REPORT

OF THE PORTFOLIO COMMITTEE ON JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS

ON

THE CRIMINAL PROCEDURE AND EVIDENCE AMENDMENT BILL

THIRD SESSION – EIGHTH PARLIAMENT

Presented To Parliament in October, 2015

ANNOUNCED

That the Committee consists of the following;

Hon. Majome, Hon. Chipanga, Hon. Gonese, Hon. Kachepa, Hon. Kagonye, Hon. Madondo, Hon. Mashange, Hon. Mashayamombe, Hon. Matangira, Hon. Mawere – Mubvumbi, Hon. Mguni, Hon. Mutematsaka, Hon. Mtingwende, Hon Ndlovu D.M., Hon. Nkatazo, Hon. Shumba, Hon. Zindi,.

Hon. Majome to be Chairperson

ORDERED In Terms Of Standing Order No.17

a)At the commencement of every session, there shall be as many committees to be designated according to government portfolios as the Committee of Standing Rules and Orders may deem fit.

b)Each select committee shall be known by the portfolio determined for it by the Committee of Standing Rules and Orders.

Terms of reference of Portfolio Committees –Standing Order No.19

“Subject to these Standing Orders a Portfolio Committee must:

(a)examine expenditure administration and policy of government departments and other matters falling under their jurisdictions as Parliament may, by resolution determine.

(b)consider and deal with all bills and statutory instruments or other matters which are referred to it by or under a resolution of the House or by the Speaker;

(c)consider or deal with an appropriation or money bill or any aspect of an appropriation or money bill referred to it by these Standing Orders or by or under resolution of this House; and

(d)monitor, investigate, enquire into and make recommendations relating to any aspect of the legislative programme, budget, policy or any other matter it may consider relevant to the government department falling within the category of affairs assigned to it, and may for that purpose consult and liaise with such department;

(e)consider or deal with all international treaties, conventions and agreements relevant to it, which are from time to time negotiated, entered into or agreed upon.

1.0INTRODUCTION

On April 3, 2015, the government gazetted the Criminal Procedure and Evidence [H.B. 2, 2015] Bill. The Bill seeks, in some instances, to align some of the country’s laws to the Constitution, while in other instances, it seeks to introduce new provisions altogether.

2.0METHODOLOGY

This report is the product of consultations by the Committee through public hearings conducted from 27 to 31 July 2015 in Bulawayo, Gweru, Masvingo, Mutare and Harare. The consultations were in compliance with Section 141(2) of the Constitution of Zimbabwe, which requires that Parliament ensures that interested parties are consulted about Bills being considered by Parliament. The Committee’s report was also informed by written submissions from interested stakeholders. Further to the consultations and submissions, the Committee also analyzed and deliberated on the Bill.

3.0THE COMMITTEE’S FINDINGS

3.1Clause 6 grants the Prosecutor-General the complete, unfettered discretion to issue certificates on non-prosecution to a private prosecutor when the Prosecutor-General decides not to prosecute in the public instance. This will deny persons who have legitimate reasons to institute a private prosecution the right to have their cases settled by a court and in some cases, they will have no recourse to any legal remedy. By denying them access to a court, the clause will contravene Section 69(3) of the Constitution.

3.2Clause 6 seeks to bar juristic person from conducting private prosecutions and therefore violates Section 56(1) of the Constitution and denies juristic persons equality before the law, equality of the protection and benefit of it and effectively denies them access to a court in terms of Section 69(3) of the Constitution. The requirement to pay a security deposit is prohibitive to those who are unable to pay. The Bill must give effect to the recent Constitutional Court decision on the case of Francis Mwaramwidze versus Attorney General G HC 10203/12, compelling the Prosecutor General to issue a certificate of nolle prosecui (non prosecution) to free a potential private prosecutor where she/he declines to prosecute.

3.3Clause 6 states that there shall be a National Director of Public Prosecutions, but doesn’t specify what that official will or can do.

3.4Clause 12 that empowers the police to restrain people who are found to be drunk or insane and detain them in a police station for up to 24 hours without charging them;

Is an anomaly as it relates to non criminal issues by its own admission yet is being proposed to be inserted into the Criminal Procedure and Evidence Act.
It discriminates against persons with mental disabilities as it allows for their detention in facilities that are not appropriate for their condition. This infringes their right to personal liberty under Section 49 of the Constitution, their right to dignity in terms of section 51 and to equality and non discrimination guaranteed by section 56(3). The Mental Health Act already provides for them adequately.

3.5Clause 12 (the new section 39C) is objectionable in that it would render admissible incriminating statements made by people who voluntarily attend police stations under section 39A or are detained under section 39B. It therefore deprives such people the protection of the law guaranteed by section 56(1) of the Constitution.

3.6Clause 15 sets out the circumstances in which force may be used to arrest people, but unconstitutionally goes on to permit the use of lethal force in certain specified conditions. However, under Section 86(3) of the Constitution, the right to life is sacrosanct: no law may limit it (except the execution of criminals who have been sentenced to death in accordance with Section 48 of the Constitution) and no person may violate it.

3.7Clause 28 will prevent suspects or accused persons from enjoying the full right to silence which the Constitution (Sections 50(4)(a) & (b) and 70(1)(i) of the Constitution) confers on them by drawing adverse inferences from their option to remain silent. This clause coupled with sections 66(6) (as read with 67(2)), 67, 115, 117A(5), 188 (as read with section 189(2)), 198(9) (as read with 199(1)), 257, and 258 of the CP&E Act erode the right to silence.

3.8Clause 29 that requires an arrested person who is charged with certain crimes to satisfy the court that there are compelling reasons for their release. The Bill effectively shifts the onus of proof from the prosecutors to an arrested person whereas it is clear from the Constitution that the prosecution should establish compelling reasons for the continued detention of an accused.

3.9The Bill effectively reintroduces the death penalty into Zimbabwe yet section 48(2) of the Constitution outlaws the death penalty and provides that Parliament may enact a law that permit the penalty to be imposed only on a person convicted of murder committed in aggravating circumstances. However, this requires a full stand-alone debate rather than inserting a clause into a piece of legislation.

Provisions omitted by the Criminal Procedure and Evidence Amendment Bill

3.10The proposed new section 5 does not prohibit the Prosecutor-General from authorizing members of the security services, in particular the Police, to conduct prosecutions and thereby fails to adhere to section 208(4) of the Constitution which prohibits members of the security forces from being employed on civilian institutions except in emergencies..

3.11The Bill unacceptably and unjustifiably leaves intact sections 32(3a) and (3), and 34(4) of the Criminal Procedure and Evidence Act, which prohibit a court from granting bail for 21 days to persons who have been arrested for serious offences.

3.12Section 33(1) of the Criminal Procedure and Evidence Act empowers a judge, magistrate or justice of peace to issue a warrant of arrest on an application stating that the applicant has reasonable grounds of suspicion against the person to be arrested. The section does not require the judge, magistrate or justice of peace personally to have any such grounds of suspicion. The section allows an official who does not personally suspect anything to deprive a person of his or her liberty on the say-so of someone else who simply alleges that he or she does have grounds of suspicion.

3.13Section 50(1)(a) of the Criminal Procedure and Evidence Act objectionably empowers a judge, magistrate or justice of the peace to issue a search warrant without personally having reasonable grounds for believing that the articles specified in the warrant are liable to seizure.

3.14The Bill also unacceptably and unjustifiably fails to repeal section 121(3) of the Criminal Procedure and Evidence Act which allows the National Prosecuting Authority to overule for seven days decisions of the courts granting bail on the pretext of mulling appeals thereby violating sections 56(1) on the right to protection of law, and section 164 of the Constitution on the independence of the judiciary. As recent as 23 September 2015, the Constitutional Court in the Fanuel Kamurendo et al v the State, CCZ 84/2015, struck down section 121(3) as not only 'more sadistic than legal', but outright unconstitutional in terms of section 13(1) and 18(1) of the former Constitution which have equivalent in the current Constitution.

3.15Section 193 of the Criminal Procedure and Evidence Act has been ignored in the proposed Bill, yet the section is discriminatory against the deaf and/or those who lack speech, and is thus misaligned to the Constitution.

3.16The Committee received the following submissions concerning section 193 of the Criminal Procedure and Evidence Act;

it legislates prejudice in stereotyping the deaf and those who lack speech by assuming that they are somehow mentally ill or intellectually challenged, have a propensity to violence and are thus a danger to society or are an endangered class of people.
has resulted in the lack of reasonable accommodations for deaf to effectively function in Zimbabwe’s mainstream communities.
does not acknowledge sign language as accepted under Section 6(1) of the Constitution as one of the country’s official languages.
promotes the pre-trial incarceration of the deaf because of their inability to prosecute their defence due to their deafness or lack of speech and thus violating the presumption of innocence (Section 70(1)(a) of the Constitution).
violates the following provisions of the Constitution, inter alia,

Section 3(f) – equality of human beings
Section 6(3) – equitable treatment of officially recognised languages,
Section 50(1)(d) – admission of arrested and detained persons to bail, considering that disability or lack of speech is never a determinant,
Section 51 - human dignity,
Section 56(1) and (3) - equality before the law and non-discrimination on the basis of language or disability, and
Section 70(1)(j) – right to have proceedings interpreted into a language the accused understands.

3.17By retaining the Third Schedule offences the Bill does not place the onus on the State to prove that a person should be denied bail as should be the case under Section 50(1)(d) of the Constitution. The Third Schedule should be repealed as there is no reason why Magistrates, who can try all the cases listed in the Schedule – except murder – should be unable to grant bail for the same offences. The Constitution requires that once an accused has been brought before a court, the accused is entitled to bail. However, those who live far away from Harare or Bulawayo continue to have great difficulties applying for bail at the High Court.

4.0COMMITTEE’S RECOMMENDATIONS

4.1The Bill should specify what the National Director of Public Prosecutions will or can do.

4.2Clause 5, the Minister should remove provisions discriminating against juristic persons and accord them equality before the law as is guaranteed by Section 69(3) of the Constitution.

4.3Clause 6, the Bill should uphold the decision of the Constitutional Court case G HC 10203/12that the Prosecutor-General is obliged to issue a certificate to a private prosecutor as long as the applicant shows locus standi to prosecute. This would protect the right to access to justice.

4.4Clause 12, in so far as it relates to the mentally challenged, mirrors section 13 of the Mental Health Act [Chapter 15:12] and is unnecessary.

4.5Clause 15 repeals Section 42(2) of the Criminal Procedure and Evidence Act that allow the use of lethal force to reflect the sacrosanct status of the right to life under the Constitution.

4.6Amend section 33(1) to require an official who issues a warrant of arrest to personally have reasonable grounds to suspect that the person to be arrested has committed an offence in order to protect the right not to be deprived of one’s liberty arbitrarily or without just cause (Section 49 of the Constitution).

4.7Amend section 50(1)(a) to require an official who issues a search warrant to personally have reasonable grounds for believing that the articles specified in the warrant are liable to seizure.

4.8Clause 28 and sections 66(6) & 10 (as read with 67(2)), 67, 115, 117A(5), 188 (as read with section 189(2)), 198(9) (as read with 199(1)), 256, 257, and 258 of the Criminal Procedure and Evidence Act should be repealed or amended so as to render them constitutional and align them with Sections 50(4)(a) and (b) and 70(1)(i) of the Constitution.

4.9Align Clause 29 to Section 50(1)(d) of the Constitution to place the onus on the prosecution to prove compelling reasons why an arrested person should not be release unconditionally or on reasonable condition (i.e. on bail). In addition, the Bill should repeal sections 32(3a) and (3b), and 34(4) and (5) of the Criminal Procedure and Evidence Act which allows persons accused of serious offences to be denied bail for 21 days in order to align the Act with Section 50(1)(d) of the Constitution.

4.10Section 121(3) of the Criminal Procedure and Evidence Act empowering prosecutors to overrule bail orders should be repealed to align the law with Section 50(1)(d) and the recent Constitutional Court ruling G HC 10203/12.

4.11Section 193 of the Criminal Procedure and Evidence Act should be repealed to protect the rights of the deaf and/or those who lack speech.

4.12Amend the Third Schedule to allow Magistrates to competently grant bail except for murder so as to promote access to justice.

4.13The discussion on whether the death penalty should be retained as part of Zimbabwe’s law should be discussed separately by Parliament.

5.0CONCLUSION

The Committee would like to express its profound gratitude for being accorded the opportunity to carry out the public hearings and implores the Executive to consider the afore mentioned recommendations in order to allow Parliament to truly make laws for the order and good governance of Zimbabwe as required by section 119(2) of the Constitution. In particular it would allow us to heed the founding provision of the principle of good governance that dictates that we must heed the public’s gathered views as that would accord with the reminder that we must never forget in, section 3(2) (f) of the Constitution to show ‘respect for the people of Zimbabwe, from who authority to govern would is derived’.