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The right to liberty under siege
The Financial Gazette
May 12, 2005

http://www.fingaz.co.zw/fingaz/2005/May/May12/8482.shtml

In the criminal justice system safeguards have been put in place which provides for people's rights to personal liberty. The safeguards come by way of common law requirements as well as statutory procedures like the Criminal Procedure and Evidence Act Chapter (9:07).

The most notable requirement of procedure that was conceived as a way of limiting the violation of people's right to liberty is that which requires in a criminal prosecution evidence beyond reasonable doubt before an accused is convicted and sentenced to any punishment including that of imprisonment.

Such a rule places a heavy burden on the state, which is generally the authority by law mandated with powers of prosecution. This higher level of proof was put in place so that the incidence of convicting innocent individuals could be curtailed or avoided altogether. Thus, before an accused person arraigned for a criminal prosecution is convicted, the trial magistrate or judge must be more than certain that the evidence through testimony, documents or other exhibits tendered by the state has conclusively and without any shadow of doubt proved the culpability of the accused person.

At the inception of the prosecution and that is before an accused person has been arraigned before the courts, the attorney-general who has the prerogative to prosecute through his representatives must ensure that there is a prima facie case against any suspect. There are two stages therefore as far as the determination of an accused culpability is concerned. The first requires that there be prima facie evidence before an accused is placed on remand and the second where an accused has been placed on remand requires that there be overwhelming proof that he committed the offence in question.

The prosecutors are by law expected to exercise their discretion judiciously. As such, when suspects are brought before the courts and a decision has to be made as to whether the police acted legally, a prosecutor must decline to prosecute where there is no evidence on face value that an offence was committed.

On the other hand the police are trained to understand the above requirement of the law so that there are not seen to be abusing their power by arbitrarily arresting accused persons in an attempt to secure undeserved convictions. In practice however it does not happen often that the police arrest suspects where there has been a reasonable suspicion or a prima facie case against the accused person. There has been a shocking tendency by law enforcement agents to merely arrest at times out of vindictiveness, political pressure, ignorance of the law and at times malice. This tendency has also manifested itself among some representatives of the attorney-general because several cases that did not deserve to be placed in court have with a shocking rapidity been placed before magistrates.

Such unobjective or unprofessional legal officers compromise people’s right to personal liberty because of ulterior motives or political pressure brought to bear on them. It is dangerous not only to one's professional integrity but to people's rights and the entire justice system for individuals who have a duty to facilitate in the attainment of real and substantial justice to be seen abrogating by overt or covert means innocent people's rights to an unhindered enjoyment of their personal freedom.

A commitment to observing the guiding principles of criminal prosecution more importantly through a firm passion for justice and fairness must always take precedence over anything else be it within the prosecution or the police force. Our legal system has a reputation to protect which reputation has been put into being by provisions of our modern and fairly democratic constitution.

It is in this vein that the police force and representatives of the attorney-general must always ensure that any suspect arraigned for prosecution must have committed an offence in terms of the law and that there is sufficient evidence in terms of the same law to secure a conviction.

A travesty of justice in instances where people's freedoms are cruelly deprived by a police force that is partisan and legal officers who succumb to political pressure is not only uncalled for but very detrimental to the public's expectation for real justice.

It is hoped, just like any other legal practitioner and role players in the criminal justice's system would do, that the new attorney-general will ensure that a proper observance of criminal procedure is promoted and sustained to ensure that the high standards previously set continue to exist within our criminal justice system.

It is not difficult to judge whether in arresting and attempting to prosecute accused persons, the state has been operating within the confines of the law. The evidence to prove the success or otherwise of the state's arresting and prosecution powers without the need to resort to official statistics can be seen by the number of suspects charged with both serious and less serious offences having their charges dropped before conviction.

Just a snap survey of the reports emanating from the courts reveal that the state has sometimes been left with a lot of egg on its face after dismally failing to prove charges levelled against perceived criminals when such suspects will have been acquitted by the courts. Such a development, shameful as it is, has been primarily caused by among other things, poor investigative experience on the part of the police, malicious intentions and manipulation by politicians as well as poor judicial judgement.

It is obvious that the mere arrest of an individual usually causes a lot of trauma and social upheaval to the suspect's life and as such the humiliating, degrading experience of detention, especially where one was innocent, is a cause for even more suffering on the part of suspects.

Our judicial officers have at times had a good reputation for being firm with frivolous and vexatious prosecutions. More needs to be done by way of continuous training on the part of the police, prosecutors and magistrates so that they understand the great need to respect a people's right to full enjoyment of their freedom.

The state's duty to maintain law and order must never be abused in an endeavour to cause an abridgement of citizens' constitutional rights. A culture of justice must be encouraged and entrenched in the minds of all those who play a role in ensuring the acquittal or conviction or accused persons in our criminal courts.

*Vote Muza is a lawyer with Gutu & Chikowero legal practitioners.

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