Abednico Bhebhe and 37 Others v The State

The first and second appellants were Members of Parliament for Nkayi and Hwange West respectively. The third to 38th appellants were all members of the Movement for Democratic Change (MDC). On 6 February 2002, all 38 appellants were arrested at Nkayi. The State alleged they contravened sections 17(1)(a) and (b) and section 30(2) of the Public Order and Security Act by throwing stones at Nkayi Business Centre and possessing offensive weapons. The appellants' version was that they were peacefully fueling their vehicles when members of the Zimbabwe National Army and war veterans attacked them, shot their vehicle tires, and brutally assaulted them with rifle butts, knobkerries, sjamboks and planks. The assaults continued at Nkayi Police Station where they were forced to crawl 20 metres while singing ZANU(PF) slogans. The appellants sustained serious injuries including gaping head wounds and broken limbs. They were denied medical attention. On 8 February 2002, the magistrate at Nkayi denied all appellants bail, citing concerns for their safety from war veterans who had cordoned the courtroom and threatened to kill the appellants if granted bail.

• Whether the appellants should be granted bail on appeal
• Whether fear of violence from third parties (war veterans) constitutes a proper basis for refusing bail
• Whether the court should deny bail to protect accused persons from unlawful threats by non-state actors
• Whether the State's decision to grant bail was appealable under section 121(8) of the Criminal Procedure and Evidence Act

The appeal was allowed. All 38 appellants were granted bail on the following conditions: (a) each appellant to deposit $1,000 with the Registrar of the High Court of Bulawayo; and (b) they not interfere with state witnesses. The State's application for leave to appeal against the granting of bail was refused.

The binding legal principle established is that bail cannot be properly refused on the basis that third-party non-state actors have threatened violence against the accused persons, particularly where alternative measures (such as transfer to another location) can address safety concerns. The State cannot justify denying bail by relying on unlawful threats from groups like war veterans who should themselves be subject to prosecution. Furthermore, under section 121(8) of the Criminal Procedure and Evidence Act (as amended by Act 8 of 1997), there is no right of appeal from a judge's decision granting or refusing bail.

The court made critical observations about the conduct of the war veterans, stating they appeared to have become "a law unto themselves" and expressing concern that the State appeared to be suggesting that the rights of ordinary citizens should be trampled upon to accommodate the unlawful activities of the war veterans. The judge observed that the war veterans who threatened to kill the appellants should have been arrested. The court also implicitly commented on the politically-motivated nature of the charges and violence, noting the appellants' assertion that they were victims of political violence and were being punished merely for belonging to an opposition party.

This case is significant in Zimbabwean jurisprudence (though decided in a Zimbabwean court, it reflects principles relevant to Southern African legal systems) for establishing that: (1) fear of violence from third-party non-state actors is not a proper basis for refusing bail, particularly where the accused can be remanded to a safer location; (2) the State cannot use threats from unlawful groups as justification to deny fundamental rights to accused persons; (3) those making threats should be prosecuted rather than having their threats accommodated by the judicial system; and (4) it affirms the finality of judicial bail decisions under section 121(8) of the Criminal Procedure and Evidence Act. The case also highlights judicial willingness to protect the rights of political opposition members in contexts of politically-motivated violence and intimidation.