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and Evidence Act for ulterior motives.

The section suspends a bail order issued by a magistrate for seven days to allow the State time to contest the decision.
When a suspect is granted bail, the prosecutor may notify the court of his or her intention to challenge the decision and by operation of the law, the suspect remains in custody pending the prosecution of the appeal.

The magistrate, according to the law, does not have power to either dismiss or deny the State’s notice.
In most cases, the magistracy said, the State would withdraw the intention after about two to three days, allowing the freedom of the suspects after they have at least stayed in custody.
The issue was raised by newly-appointed provincial magistrate in charge of Harare Province Mr Munamato Mutevedzi while addressing a workshop on overcrowding in prisons in Harare on Thursday.

The two-day workshop was organised by the Zimbabwe Association for Crime Prevention and Rehabilitation of the Offender.
Zacro is an organisation founded in 1928 to improve prison conditions and champion the rights of prisoners.
Mr Mutevedzi said the invocation of the section had the effect of taking away the court’s function to decide on bail issues.

“What must be pointed out is that the section was neither meant to enable prosecutors to spite the magistrate for making a decision, which the prosecutor does not like nor to fix an accused person.
“It is a provision that is reserved for the worst cases. In any case magistrates have attacked this provision because it takes away the court’s function to decide on issues of dispute and give that power to a prosecutor, who in our adversarial system, is a litigant standing at equal footing with the accused person.

“The noble intention that Parliament had in enacting that provision is hard to ignore. The call here is therefore for prosecutors to desist from invoking Section 121 for ulterior motives.
“It is the system that suffers because of such decisions,” said Mr Mutevedzi.
Responding to this, an officer from the Attorney General’s Office Mr Mehluli Tshuma defended the State arguing that invocation of the Section was done with the sole purpose of allowing the smooth flow of justice.

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“We are not abusing the said section as alleged. There are cases where we feel magistrates would have failed to appreciate the law and the facts as presented and at law we cannot allow illegalities to continue.

“We rarely invoke that section and personally in my 10 years experience, I have never invoked Section 121. I wonder how it was concluded that we get instructions from our superiors to invoke bail.
“A prosecutor is very independent and at no time do we get instruction to act unlawfully. I believe the prosecutor has discretion to handle any case the way he or she likes as long as it is being done within the confines of the law. These are just generalised and baseless claims,” he said.

Mbare magistrate Ms Tendai Rusinahama gave a personal experience of how a certain prosecutor was seeking to secure denial of bail at all costs on flimsy grounds for unknown reasons. She said the prosecutor immediately invoked the said section after the suspect had been granted bail.

Area prosecutor for Harare Province Mr Jonathan Murombedzi reinforced Mr Tshuma’s argument saying certain decisions by magistrates naturally called for the invocation of the Section.
“We are not in the habit of invoking Section 121 as said and we never act on unlawful instructions. For example, recently we were forced to invoke that section after a habitual criminal had been granted bail.
“That suspect committed an offence of kidnapping and rape while he was on bail pending appeal against a 12-year prison term for fraud.”