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Tichawana Nyahuma Correspondent

If you reside in Harare and if, at one point or another, you have had a brush with the law, then you are probably familiar with the interior decor in courtroom number six at the Harare Magistrates’ Court (Criminal), popularly known as Rotten Row.

It is in that court that you will see, arguably, the largest concentration of lawyers per square metre in a single courtroom in Zimbabwe.

The reason is that the great majority of suspects or arrested persons in Harare when they are taken to court on a criminal charge for the very first time, they will be tried in any one of the more than 20 courtrooms at Rotten Row, but not before they are attended to in Court 6, it being the administrative or case management courtroom in that giant building.

When many accused persons are dragged to the criminal court, they will, as they are entitled to, be in the company of their lawyers to represent them, hence the huge number of legal practitioners that are found in Court 6 on any day.

Certain processes will then ensue before the suspects are referred to the appropriate trial courts. Other accused persons in Harare are dealt with at the Mbare Magistrates’ Court.

The other reason why Court 6 is always packed is that it also takes care of those accused persons who will be on remand, not remind.

I shall clarify what is meant by remand later on in this discussion.

But how do things happen or what exactly takes place in Court 6? In order to answer this question, it is necessary to explain the role of the police and the prosecution departments within our criminal justice system.

Apart from keeping the peace, the role of the police is to detect and investigate crime and if the suspect is known, and if he should be found, to arrest that person and cause him to appear in court to answer to the charge.

It happens very frequently in our country that the police arrest suspected offenders before investigations are conducted or completed. This is regrettable.

The ideal situation would be for the arrests to always follow investigations and not the other way round. Lawyers always complain that, “The police arrested my client in order to investigate. They should have investigated in order to arrest”.

However, depending on the nature of the allegations one is facing, the complexities and extent of the investigations involved and for practical purposes, the law permits the police to take suspects to court before investigations are completed.

In terms of our Constitution, an arrested person may not be held in police custody for a period in excess of 48 hours.

Further detention may only follow when it is has been authorised by either a magistrate or other lawful authority.

Put differently, the police are obliged to take the accused person to court and present him or her before a magistrate or other competent court within 48 hours of the suspect’s arrest.

But because in most cases, investigations would not have been conducted or completed as I have said, the trial will not be ready to commence there and then.

What then happens is that upon appearance in court for the very first time on a particular charge with those uncompleted investigations, the court will have no choice, but to release the accused person on bail unless the offence charged is one for which the magistrates’ court has no power to grant bail. In such an instance, the suspect is referred to the High Court for the bail application.

Note, however, that there are occasions where an accused will be facing a charge in which a magistrate does not ordinarily have the power to admit him to bail,  but can still release him if the prosecutor so agrees.

Even in a case in which the magistrates’ court has the authority to grant bail, it does not follow that the bail will be automatic.

The court can still decline to do so if there are what the law calls “compelling reasons justifying the continued detention” of the accused.

It is not the place for this discussion to go into the nitty-gritties of the so called “compelling reasons”.

Otherwise the court is not shackled by the prosecutor’s consent, but it exercises its own uncontrolled discretion after taking into account all the circumstances of the matter.

Whatever happens, that is to say, whether or not bail is granted, the accused person will be remanded, not reminded, to another date either in or out of custody.

On its part, the prosecution’s role in the life of the arrested person is to represent the State which, in all criminal trials, is the accuser, during all the proceedings to do with the case.

Upon arrival at the court, the responsible prosecutor will conduct a process called “vetting” which entails a review of the paperwork that would have been compiled by the police relating to the allegations as well as whether or not, on a mere glance of the papers, it may be inferred that an offence was committed.

In doing so, he may interview the accused person and/or the complainant (that is the person against whom the offence was allegedly committed), and if he is satisfied that an offence was committed, then the matter is referred to our famous Court 6.

If on the other hand, the vetting prosecutor forms the view that an offence was not committed, he may dismiss the case right there and then.

This, however, will not signal the end of the matter.

The police will still be at liberty to investigate the case further and to cause the suspect to return to court again once they are of the view that they now have a solid case.

In the event that the prosecutor vetting the case feels that an offence was committed, but that the paperwork is somewhat malnourished in the sense that it will be lacking certain essential details or a certain crucial witness’ statement, the prosecutor is empowered to pinpoint those defects to the police and in that event, he may direct that the accused person, nevertheless, appears in Court 6 for remand or that he be released pending the beefing up of the papers.

When the accused is eventually hauled into Court 6, the presiding magistrate is obliged to inquire into the question of whether or not he has any complaints against his handlers while the time he was in Police custody.

The complaints may be such as having been assaulted, denied food or access to his/her lawyer and so on.

If there are any, the magistrate will order that the complaints be investigated, and for appropriate action to be taken if the complaints are found to be true.

There are, however, certain complaints which will require the magistrate’s prompt action, especially where the complaint is admitted by the prosecutor to be a genuine one.

For example, where a suspect complains to the magistrate that he was over-detained by the police, the magistrate, if satisfied, must order the immediate release of the accused.

The police would have to re-arrest that person in due course and then do things properly.

If there are no complaints, and if the accused is admitting to the charge, the trial will be rendered unnecessary, and the accused may be sentenced right there and then, obviously after following due process.

If, however, the accused would have indicated to the police that he is denying committing the offence, then the bail inquiry will follow to establish if the arrested person is one that can be trusted to attend court while coming from home.

The position in our law is that every person appearing in a court of law on a criminal charge for the very first time is entitled to be released on bail unless there are the so called compelling reasons justifying his continued detention as previously indicated.

Now once it is established that the trial is not ready to kick off, the accused is then remanded to another date in the same court number six.

To be remanded is to be officially told by the presiding magistrate that the accused is still before the court, and that although he is in or out of custody, he must return to court on a stated date and time.

Failure to so return will result in a warrant of arrest against that accused person being issued.

If the suspect fails to pitch-up in court as directed, he risks being thrown behind bars until the trial is eventually commenced and concluded.

However, if there are good and sufficient reasons for the default, the court will likely cancel the warrant of arrest and the suspect remains out of custody till the day the trial is finalised.

For as long as the investigations are not finalised, the trial will not begin.

Conversely, once the police are done with the investigations, when the accused next appears for his/her routine remand, will be told to reappear in court on a particular date  and to attend in a particular courtroom, which is very likely not to be Court 6, for the trial.

It is at that stage that he will be given all the documents, the so called “State papers”, containing the allegations against him/her as well as the statements of the witnesses that will be earmarked to give evidence against him at the trial.

If on the other hand, the investigations take too long to conclude, the accused, either by himself or by his lawyer, after giving the prosecution due notice, may make an application for refusal of further remand.

Such an application is based on the suspect’s constitutional right to a trial within a reasonable space of time.

The reasoning behind the right is that a suspect, who at law is presumed innocent until pronounced guilty by the court, cannot live with the criminal allegations hanging over his head for an unnecessarily long period of time.

Having the allegations stand pending without the trial being conducted naturally curtails one’s rights in one or more ways.

First, the freedoms of the accused will be limited as, for instance, his/her passport may have been surrendered to the court upon the grant of bail meaning he/she cannot travel willy-nilly outside the country.

Second, he/she may have been ordered not to reside at his own home or not to talk to certain persons.

This and more may be unnecessary restrictions on a probably innocent person. So the guilty or otherwise of a suspect must, as a matter of right, be determined within a reasonable period of time.

As to what amount of time is reasonable, depends on the circumstances of each case.

If the application for refusal of further remand succeeds, it means that although the case against the accused still stands, he/she stops coming to court, and if he had paid for bail, he may claim it back, including his passport if he had surrendered it to the court upon the grant of bail.

And if it was a bail condition that he reports to the police at certain intervals, he can also stop doing so. Basically, the accused becomes a “free” man again.

However, when the investigations are eventually done, the suspect will be served with a summons directing him/her to return to court for his trial.

A failure to obey the summons means a warrant of arrest will be issued and upon being arrested, the accused person is very likely to see out his/her trial while enjoying free food, transport and accommodation at remand prison.

This is how accused persons appearing in Court 6 at the Harare Magistrates’ Court are dealt with before being referred to the appropriate trial courts.

Although this discussion is centred on the procedure at Rotten Row, the systems and procedures are much the same throughout the country except that at smaller stations, they might not have a single courtroom that is dedicated to dealing with accused persons before trial as happens in Rotten Row’s Court 6 per this presentation.

Tichawana Nyahuma is a lawyer, and he writes in his personal capacity. Feedback; [email protected]