Zim authorities detain suspects indefinitely, despite laws

By Global Press Journal | Feb. 20, 2024 | 7 Min read

Kapange was sentenced to 36 months in prison for theft; 10 months were set aside on condition of good behaviour, while two months would be shaved off his sentence if he returned the stolen money. But the seven months he spent in a Harare remand prison were not counted towards his sentence.

ONE winter night in June 2022, Lynet Mhizha’s husband, Clever Kapange, failed to return home as usual. Around midnight, Mhizha received a call from her brother-in-law. Her husband was being held at a local police station on suspicion of stealing cash and a cellphone.

That day marked the beginning of Kapange’s long stay behind bars.

“He started appearing in court beginning of July 2022. From then, he appeared before the magistrate every two weeks until December. In January [2023], he appeared in court everyday until he was sentenced that month,” Mhizha said.

Zimbabwe’s justice system has seen delays in criminal investigations, leading to suspects being remanded for extended periods before trial. This is commonly referred to as pre-trial detention and is the time during which a person is held and questioned by police, prior to being charged with an offence.

Political activist and lawyer Job Sikhala was in remand for nearly two years. Sikhala, a former member of Citizen Coalition for Change, Zimbabwe’s main opposition party, was arrested in June 2022 while attending the funeral of an opposition party member who had been murdered. He was charged with two offences: Obstructing the course of justice and inciting public violence. Sikhala was convicted for the first offence in May 2023. It was not until December that a trial for the second offence began.

All the while, Sikhala remained in remand and was brought to court every 14 days. On January 30, Sikhala was convicted of inciting public violence and sentenced to two years. His sentence was suspended because he had already spent a long time in jail and he was released from prison. Job Sikhala Jr said the arrest of his father, who was set to defend his parliamentary seat for the Zengeza West constituency in the August 2023 elections, was politically motivated.

Legal experts say such detentions are unconstitutional. Section 50(6) of the Constitution of Zimbabwe prohibits detention of accused persons awaiting trial for unreasonable periods. Families of those incarcerated lament the long detention’s negative impacts.

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Elias Mapendere, a lawyer in Harare, said a person should not be held in remand for over 14 days unless there are compelling reasons to justify their continued detention. He said the law provided that every request for a further remand be an application by the State. “It should never be seen as a ritual. So, both the State and the court should be sensitive to such requests since everyone should be presumed innocent until proven guilty.”

Mapendere said the power to make such decisions lies with the courts. “The court has power to uphold the rights of accused persons by refusing further remand, the effect of which would be the accused person is excused from further attendance.” Once such a person is released from custody, the State would proceed in the matter by way of summons, he said.

Zimbabwe, as a signatory to several treaties, is obliged to ensure arrested persons are not held for unnecessarily long periods. The country is a member of the African Union — a continental body established to promote unity among African States — which has endorsed the “Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.”

Furthermore, Zimbabwe, as a party to the African Charter on Human and Peoples’ Rights, an international treaty aimed at protecting basic freedoms and human rights on the continent, has an obligation to comply with the guidelines which afford an accused person the right to be presumed innocent until proven guilty by a competent court or tribunal.

But, according to an article posted on Opinio Juris, a website dedicated to informed discussion of international law, the statute seems to have been misapplied by Zimbabwe’s magistrate courts, with authorities appearing to be selective and inconsistent in their application of the law. “The arrest and subsequent denial of bail and prolonged pre-trial detention is undoubtedly and increasingly being used as a tool of repression in Zimbabwe,” the article stated.

It cites the cases of student activist Alan Moyo, who was detained for 72 days prior to his trial, and journalist Hopewell Chin’ono, who was held for 45 days without charge. Moyo was arrested in December 2020 for inciting public violence and allegedly being part of a group organising peaceful anti-corruption protests earlier that year. Chin’ono was arrested that same month on charges of incitement to participate in public violence, after posting a tweet on what is now X.

Solomon Manyama vividly recalls the day he was arrested in April 2021. He said he did not know the day he was taken to the police station would be his last as a free man.

For more than two years, Manyama sat behind the walls of Mutare Remand Prison, awaiting trial for the murder of two children. “I co-operated with the police, thinking I was just going in for questioning,” Manyama said.

He said he appeared before the courts countless times. “I cannot even remember how many times, but those appearances included bail applications which were denied.” Before his arrest, Manyama, a father of six, worked as a builder and earned other income from farming. He worries most about his children’s welfare.

“I am the sole breadwinner to three of my children and wife. The other three are struggling with their own families to take on another responsibility,” he said.

In September 2023, Manyama was convicted and handed double life sentences for the murders. He maintains his innocence.

The Constitution provides for compensation when the arrested person has not been accorded their rights. These rights include release from detention within 48 hours of the initial arrest.

Mapendere said there was often no compensation for prolonged pre-trial detentions. “If a person is found guilty, normally courts consider it as a mitigatory factor that a person has stayed in custody for a long time before conviction. But that only applies to a person that has been convicted.”

The outcome for an acquitted person is different, he said. “The criminal trial court cannot do anything. In appropriate cases, the person can sue the State for wrongful arrest in the civil court.”

Darlington Marange, a human rights lawyer, said although the Constitution granted every person the right to bail unless there are compelling reasons to justify their continued detention, that isn’t happening in practice.

“Opposition activists and human rights defenders are being arrested on various charges and detained in custody for more than a year,” he said.

Marange represented students accused of defacing the walls of several buildings in town demanding Sikhala’s release. He said his clients were detained for over two months before their trials began. They were later released on bail.

He said such pre-trial incarceration usually happened when there was no concrete evidence to secure a conviction.

Prolonged detentions, he adds, have far-reaching consequences. Workers can lose jobs and students might have to retake classes to make up for lost studies.

In an earlier interview, before his father’s release, Sikhala Jr, the eldest of 16 children, said the politician’s incarceration forced him to fend for the family even though he was still in school.

Mhizha is also bearing the consequences of her husband’s prolonged detention and his eventual sentencing. After Kapange’s arrest, she was left to fend for their 2-month-old son.

“The first days before he was sentenced were really difficult and financially draining because I had to constantly go to court to support my husband. I ended up depending on my relatives for sustenance,” she said. Mhizha found a job as a hairdresser to take care of her family.

Noah Dongorere, from Mutare district, said the most painful part of being in remand was not knowing how his family was doing. “My wife left our home way before I was arrested, leaving my elderly mother and me to take care of the children,” he said.

Dongorere is also worried about the future because his mother-in-law, who helps care for the children, is old and sickly.

“She needs help with the children and also financially, and with me in here, it is really hard for her,” said Dongorere, who has been in remand since March 2022. He’s accused of assaulting his mother who later died from her injuries.

Dongorere hopes his case concludes soon and that the time spent in remand will be considered if he gets a custodial sentence.

Mapendere said court delays were not ideal. “We often hear the State telling the court the reason why one must keep on being remanded is that police investigations have not been finished. Yet the law provides that the police should investigate before arresting and not arrest to investigate.” This, he argues, is a clear violation of the accused person’s rights.

But claiming damages for wrongful detention is challenging because the person must prove the arrest was malicious. This could be difficult, as the police have discretion to arrest anyone based on reasonable suspicion.

The Judicial Service Commission, which supports the justice system in Zimbabwe, did not respond to numerous interview requests.

Mhizha said it would have helped if her husband had a lawyer, but they could not afford one.

“If he had been tried quickly and the court case hadn’t dragged that long while he was in prison, it would have saved us financially and he would have completed his sentence by now,” she said. “But instead, over seven months of imprisonment was for nothing.”