Hilary Muza 
THE manner in which certain bail applications are being handled at the Harare Magistrates’ Court leaves no doubt in the minds of many observers that this court is fast losing its integrity. 
This is more particularly with cases involving certain political activists. The pattern that one observes is that once certain accused persons are arraigned before the courts and exercise their constitutional right to get freed pending trial, then it is almost given that such bail applications will be dismissed.
This is despite the fact that most of the cases are trivial to say the least, and the accused persons will not be in the class of what may be deemed to be flight risks.
Certainly, the conduct of certain judicial officers at the Harare Magistrates Court is placing the administration of justice into serious disrepute.
Accused persons who would have been denied bail at this Magistrates Courts are always vindicated by the High Court, that in almost all the cases has proceeded to grant them bail on stipulated conditions.
The manner in which things have unfolded follow a certain systematic pattern. An accused person is denied bail by the court, he spends a few weeks or months in custody seeking bail in the High Court and the High Court without hesitation, grants such an accused person bail pending trial.
The question that many in the legal fraternity are asking is, why are we getting accused persons in politically-related cases systematically being denied bail by the Magistrates Court?
What is fundamentally wrong with our Magistrates Court at Harare that has placed itself in such a negative reputation of unjudiciousness?
Is this a question of incompetence or intimidation, or simply lack of independence? Certainly this cannot be a coincidence.
An invisible hand may be dictating to judicial officers how such cases should be dealt with, in the process seriously undermining the integrity and authority reposed in these judicial officers by law.
In other jurisdictions, this unfamiliar pattern of events would have invited a commission of inquiry.
Magistrates are trained to be independent in their approach to duty and are also expected not to take instructions from anyone when discharging their duty.
They are expected to be professional thinkers who use their discretion independently, judiciously and without fear or favour.
Hence, any accused person appearing before them should so appear in the confidence that he is appearing before a fountain of justice and his rights will be protected in terms of the Constitution.
Coming to the Constitution, an individual’s right to liberty has been given sufficient safeguards. Section 49 provides that every person has a right to personal liberty, which right includes the right not to be detained without trial.
The manner in which certain dismissals of bail applications are unfolding leaves one in no doubt that such bail denials border on illegal detention without trial.
What compounds the situation is that if you draw a comparison between political actors and hardcore criminals, one finds that it is almost easier for a hardcore criminal to get bail than certain political activists facing a trivial charge relating to for example, social media use.
There are clear guidelines that the courts have set regarding the issue of bail applications in the new constitutional dispensation. The onus is now on the State to prove on a balance of probabilities that an accused person arraigned before the court for initial remand is not a good candidate for bail.
Cogent reasons based on tangible evidence must be placed before the court to prove that the accused person must await for his trial while in custody.
In doing so, the State must also prove that the accused person is a flight risk and having him granted bail will endanger the administration of justice in that he will likely abscond trial.
In judging whether an accused is a flight risk or not, the State is also expected to stress on the gravity of the offence and the sentence that the accused will likely have which may motivate him to take flight.
Whether an accused person is of fixed aboard, is employed, is a family person, has business interests, has travel documents or not, or has had a propensity to commit a similar offence while on bail; stand out as the major guidelines a court must consider when dealing with bail cases.
It can be observed that some of the accused persons are top advocates/legal practitioners and/or professionals with well-established businesses and career paths and almost all their cases confirm that they are good candidates for bail.
There is certainly a structural defect that needs to be patched at Rotten Row Magistrates’ Courts and the duty to rectify this anomaly lies in the Judicial Services Commission.
The danger of leaving such a situation uncorrected is that, where anarchy has been allowed to prevail, the perpetrator of an injustice may in future be the victim of the same system that he would have served so zealously.
So while the situation still permits, justice must be served in its true form and not in this diluted format that undermines our Constitution.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
