Imprisoned before being found guilty

Source: Imprisoned before being found guilty – DailyNews Live

Tarisai Machakaire      14 May 2017

HARARE – Pension Murema has been awaiting trial for the past 11 years, and
the years he has lost in Harare Remand Prison engaging with a sluggish
justice system has impacted him adversely.

Murema’s murder trial had either not begun or had been delayed because of
a mix of things – jail authorities had not received a “committal warrant”
identifying the court and date of hearing, magistrates’ transfers and lack
of fuel at Zimbabwe Prisons and Correctional Services.

Since his arrest in 2006, he was only served with an indictment for trial
in November 2015 by a Karoi court.

Accused of allegedly drowning his six-year-old son in a dam 11 years ago,
he filed for bail pending trial in the High Court last week, citing
unjustified delays of 11 years in the commencement of his trial.

The State alleges that on May 14, 2006, Murema awoke his son around 3am
and commandeered him to Born Valley Dam, about 2km from his homestead.

At the dam – situated in Chief Dendera’s jurisdiction in Magunje, Karoi –
he allegedly placed some stones  into the deceased’s clothes and threw him
into the dam, instantly drowning him.

He was arrested after being fingered as the mastermind of the crime.

Legal experts said the criminal justice system is supposed to ascertain
whether an accused person is guilty of a crime through a trial within a
reasonable time.

Police and prison officials often fail to fulfil their roles, leading to
long delays in trials. Often, however, judicial oversight of detention –
which is essential to protect against unlawful or excessive detention – is
also lacking.

According to Zimbabwe Lawyers for Human Rights, “the Constitution of
Zimbabwe contains a Declaration of Rights applicable to all persons in

Pretrial detainees “retain all the rights of a free citizen save those
withdrawn from him by law, expressly or by implication, or those
inconsistent with the legitimate objectives of the corrections system.”

“Insofar as awaiting trial prisoners are concerned, it must never be
overlooked that they are not convicted and, accordingly, presumed to be
innocent of any wrongdoing,” the rights lawyers said.

“The purpose of their detention is merely to bring them to
trial…Punishment, deterrence or retribution in such a context is out of
harmony with the presumption of innocence.”

Over the years, while various announcements and judgments have been made
to tackle the “under trial situation”, little has changed on the ground.

The need for liberty before trial has been incensed by poor habitation
conditions at the country’s prison institutions where detainees scramble
for food, uniforms, water and ablution facilities.

Liberty Gono, a lawyer at Machaya and Associates, said “while there is a
need to balance the interests of justice and rights of an accused person,
the State should not be seen to take advantage by delaying a person’s
right to a quick trial.”

“A balance ought to be seen hence the saying that `justice delayed is
justice denied.’

“Honestly, after serving 11 years in remand prison, a person would have
almost completed a full jail term. Imagine the prejudice that person would
have suffered if eventually he gets acquitted?”

Human rights lawyer Kudzayi Kadzere said constitutionally-enshrined rights
guarantees accused persons a speedy trial, but it was the court’s
obligation to ascertain the suitability of a person to freedom.

“The reason why some people get to spend so much time is because they
would have been denied bail. The Constitution requires a speedy trial but
delays are a result of multi-dimensional crisis because there is a
shortage of manpower in the judicial system, especially magistrates and
prosecutors, such that a speedy trial may not always be guaranteed,”
Kadzere told the Daily News on Sunday.

“Accused persons who feel that their right has been infringed on should
always apply to the court for release, but if one is not suitable for
bail, they will be likely to stay in prison.”

There are also other ways in which the Judiciary enables the denial of
fair trial rights and excessive pretrial detention. It is by not
adequately considering alternatives to pre-detention, for instance; or by
not taking note of undue delays caused by State agencies like the police
and prosecution.

Excessive pre-trial detention violates under trial prisoners’ rights to
liberty and fair trial, and adversely impacts their life and livelihood.

Legal experts say a lack of effective management of information relating
to prisoners, the absence of functional and effective under trial review
committees, lack of adequate legal aid, and delays in court productions of
under trials – contribute to the problem and the authorities must as a
first step, identify and release all those prisoners who are eligible for
release under law, including those who have already been in prison for
over half the term they would have faced if convicted.