Charles Thomas and Others v The State

The three applicants were executive members of the Mthwakazi Liberation Front (MLF), a political organization seeking to create a separate state called the Republic of Mthwakazi from Zimbabwe through negotiations and a referendum. They were charged with treason under section 20(1)(b) of the Criminal Law (Codification and Reform) Act. On 1 March 2011, the 2nd and 3rd applicants attended an MLF executive meeting at Princess Park Mansions, Bulawayo. The state alleged that at this meeting they connived to influence people to rise and demonstrate against the government to create a separate state. The applicants were found in possession of MLF fliers and calendars, with the 1st applicant allegedly distributing them. The fliers contained messages urging people to rise up like those in Ethiopia, Sudan, Egypt and Tunisia, and included messages to the Zimbabwe Armed Forces to refuse orders and join a Mthwakazi Armed Forces. The 1st applicant did not attend the executive meeting. The 2nd applicant was married with four children, a businessman and ZIPRA veteran. The 3rd applicant was also married with four children and a businessman who had participated in presidential elections before. All three held passports.

• Whether the applicants should be granted bail pending trial on a treason charge
• Whether the seriousness of the treason charge justified denying bail
• Whether there was a risk that the applicants would abscond if granted bail
• Whether the applicants would interfere with police investigations or witnesses if granted bail
• Whether the applicants had a propensity to commit similar offences
• What weight to give to the apparent strength or weakness of the state's case in a bail application

All three applicants were admitted to bail on the following conditions: (1) Each to deposit US$2,000 with the Registrar of the High Court, Bulawayo; (2) Each to reside at their specified residential addresses until finalization; (3) Each to report at Bulawayo Central Police CID Law and Order three times weekly on Mondays, Wednesdays and Fridays between 6am and 6pm; (4) Surrender passports to the Registrar; (5) Not to interfere with state witnesses or evidence; (6) Not to leave 40 kilometres radius of Bulawayo Main Post Office without written leave of a magistrate; (7) Not to attend political gatherings.

In bail applications, the primary consideration is whether the applicant will stand trial or abscond, and whether they will interfere with the fairness of trial by intimidating witnesses or tampering with evidence. The approach requires striking a balance between the interests of society (that the accused stand trial without interference with justice) and the liberty of the accused who is presumed innocent pending trial. While the seriousness of the offence is a relevant factor, it must be balanced against the apparent strength or weakness of the state's case. The seriousness of the charge alone does not justify refusing bail where the state's fears about absconding and interference can be adequately addressed through the imposition of stringent bail conditions. Even where there is propensity to commit similar offences, this is not necessarily a valid reason for denying bail if appropriate conditions can address the concerns.

The court made observations about the content of the MLF fliers and minutes, noting that whether they were truly treasonous was a matter for the trial court to decide, but commenting that they did not expressly advocate for removal of government by unconstitutional means. The court observed that the investigating officer and state counsel had paraphrased and interpreted the fliers' contents as advocating for treasonous removal of government. The court also noted that the bail conditions would unfortunately limit the applicants' aspirations in the political arena, but acknowledged these were necessary given the serious allegations and their previous brushes with the law.

This case is significant in Zimbabwean criminal procedure law as it demonstrates the court's approach to bail applications in politically sensitive cases involving treason charges. It establishes that even in serious offences like treason, the strength of the state's case is a relevant consideration in bail applications. The judgment affirms that the seriousness of the charge alone is not sufficient to deny bail, and that state concerns about interference and absconding can be addressed through stringent bail conditions. The case also illustrates the court's willingness to critically examine the factual basis of treason charges and not simply accept the state's characterization of political activities as treasonous. It balances the constitutional right to liberty and the presumption of innocence against legitimate state concerns about the administration of justice.