Fidelis Munyoro Chief Court Reporter
The High Court has castigated high-profile individuals facing corruption charges for abusing bail conditions, seeking passports for travel for medical or business reasons not revealed in the original bail application and thus rendering the court-imposed restrictions ineffective.
The court also noted that some said they were too ill to stand trial, but were able to run around and travel.
When setting bail conditions for those with resources to travel easily and who are facing serious charges, the courts normally seek more than just cash bail, also wanting the surety of the accused person’s up-market home and especially stopping them from leaving Zimbabwe or living in another country. They usually have to frequently call at a police station near their home to prove they are still in the country.
Justice Pisirayi Kwenda yesterday made a scathing attack on former Zimbabwe Power Company (ZPC) chairperson Stanley Nyasha Kazhanje and former Zimbabwe National Road Administration chief executive Frank Chitukutuku. Both approached the High Court separately, and in the end unsuccessfully, seeking the temporary release of their travel documents.
Kazhanje, is out on bail pending his High Court appeal against both conviction and sentence for allegedly concealing a US$10 000 payment he received from Intratrek Zimbabwe chief executive Wicknell Chivayo, a conviction that earned him a one-year jail term. He wanted to have his passport returned to enable him travel to Mozambique on a business trip.
Chitukutuku is on bail pending trial and had asked for the release of his passport to travel to South Africa to seek urgent medical treatment. He is charged with abusing his office by corruptly influencing the awarding of contracts worth US$20 million for the rehabilitation of roads to Fremus Enterprisers (Pvt) Ltd without following tender procedures.
Delivering the ruling in the case of Kazhanje, Justice Kwenda noted the former ZPC boss had systematically subverted the conditions of his recognisance under the guise of temporary variations.
It was the court’s view that every condition of bail was there to serve a particular purpose separate and distinct from that served by the other conditions.
“All the conditions work together as a unit to ensure that the accused person or the convict does not flee or is incentivised to stand trial or prosecute his appeal,” said Justice Kwenda. “Bail conditions are not tradeable commodities.”
The court, he said, did not operate the commercial activity of barter and would only alter the bail conditions if it was of the opinion that it was necessary to do so.
Justice Kwenda also took a judicial notice of the recent abuse of the temporary release of passports and waiver of reporting conditions by the high-profile individuals facing trial on corruption charges whose matters have come before the higher court.
“The fugitives are incapacitated by illness to attend court and yet alive and kicking for other purposes,” he said.
“While the accused can flee the jurisdiction without a passport, it is difficult to lawfully live in a foreign country without a passport. Therefore, the holding on to the passport acts as a restraint,” he said dismissing the application.
The court also made similar observations on Chitukutuku, who could not explain why he failed to advise the court at his initial bail hearing that he required his passport to travel to South Africa for specialist treatment every three months.
Thus, the judge said, a suspect who withholds information known to him at his or her bail application does so at his or her peril because they will not benefit from the restricted powers provided under the Criminal Procedure and Evidence Act to vary the conditions. The court found no merit in Chitukutuku’s application and declined his request for the temporary release of his passport.