FUNGAI CHIMWAMUROMBE & PLAXEDES TAVIRAI
Following the declaration by the World Health Organisation of Covid-19 as a global pandemic, a state of disaster was declared in Zimbabwe on the 20th of March 2020.
Across the globe, governments have responded to the crisis in different ways. The most common response measures, however, have been the implementation of complete or partial lockdowns and movement restrictions, and the enforcement of basic hygiene practices such as regular hand washing and social distancing.
Since the onset of the pandemic, the Government of Zimbabwe has instituted a number of policy, institutional and operational measures to combat and contain the pandemic and reduce its negative impact, especially on the poor and vulnerable members of society.
One of the measures include the suspension of all judicial services and such measures have assisted in reducing the spread of Covid-19 virus.
A national lockdown and prohibition of gatherings was legislated for the 21 day period commencing March30, 2020.
The extent of lockdown has been reviewed and revised since then with the latest change extending level four (4) lockdown to the 24th of August 2021. The Judicial Service Commission issued out a number of practice directives amid the lockdown regulations and to date the latest practice directive is judicial service commission practice directive no. 7 of 2021 ordering the ban of filing of new civil cases, trials, filing of pleadings and a rollover of criminal cases from their initial dates of remand to other dates.
This article shall provide insight into the impact of the Covid-19 restrictions on those that are remanded in custody awaiting trial.
The Covid-19 global pandemic has affected almost everyone in the world in one way or the other and almost no one was not spared from the effects of Covid. This article raises a major concern of the detainees that are remanded in custody and violations of their rights to liberty and right to a speedy trial following over 20 Covid-19 related Statutory Instruments. Some of the fundamental human rights are under severe threat as a result of the Covid-19 restrictions.
Detainees are spending months and months locked up in prison before trial and with no anticipation as to when trials may resume or begin.
It is evident that the restrictive measures around Covid-19 have clashed with human rights.
Hence, in the exercise of their powers, authorities should make sure that human rights such as the rights to liberty are not adversely affected and those in remand are granted their rights to bail as stipulated for in the constitution.
Every person has a right to personal liberty, that is a right not to be unjustifiably detained without trial.
Section 49 of the Constitution provides that the right to personal liberty includes the right not to be deprived of their liberty arbitrarily or without just cause.
The right to liberty is an individual to do his or her will freely The right to liberty is one of the most important as it affects the vital elements of an individual’s physical freedom. The Covid-19 pandemic poses additional strain to accused persons being remanded in custody without trial and this negatively impact the right to liberty as enshrined in the constitution.
The detention of the accused violates section 49 of the Constitution which guarantees the right to personal liberty.
Section 70(1) (a) provides for the presumption of innocence it states that any person accused of an offence has the right to be presumed innocent until proved guilty. This is the primary rationale for the requirement of the Constitution that an arrested person has the right to a speedy trial so that his or innocence or guilty is determined. Section 69 of the Constitution provides that a person charged with a criminal offence has a right to a fair hearing within a reasonable time by an independent and impartial court. The Covid restrictions have a negative impact on the right to hearing within a reasonable time.
The tenets of the Constitution with regards to the presumption of innocence also requires that pre-trial detention should not constitute punishment, and the fact that the accused persons are not convicts should reflect in their treatment and management. Amid the COVID 19 restrictions the courts should always be inclined to remand all accused out of custody where possible and should lean in favour.
However, the courts in exercising their duties where rights are an issue are guided by the limitation provisions in section 86 and will seek to strike a balance between the interest of society which meant that the accused should stand trial and there should be no interference with the administration of justice and the liberty of an accused who, pending the outcome of his or her trial, is presumed to be innocent. There should therefore be extremely compelling reasons for either the Magistrate or the Judge to remand a person in prison. The right to liberty should however always take precedent.
Rights of the arrested and detained persons are contained in section 50 of the Constitution wherein the constitution states that Section 50(6) of the Constitution provides that a person who is detained pending trial for an alleged offence and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions to ensure that after being released they attend trial, avoid interference with the evidence to be given at the trial; and do not commit any other offence before the trial begins. Additionally, the restrictions have a negative impact on the visits to the detainees as intercity travelling has been banned.
In a nutshell therefore Zimbabwe has instituted a number of policy, institutional and operational measures to combat and contain the pandemic and reduce its negative impact, especially on the poor and vulnerable members of society. One of the measures include the suspension of all judicial services and such measures have negatively impacted the prisoners rights to trial within a reasonable time, right to liberty and some other important rights.
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Plaxedes Tavirai can be contacted on plaxedes@zenaslegalpractice.com
