Chrispen Chikunya v The State

The applicant was charged with murder arising from an incident between late November and 13 December 2020. It was alleged that the applicant, together with four co-accused, confronted the deceased at the Zimbabwe-Botswana border, accused him of being a robber, assaulted him with various weapons, tied him up, bundled him into a vehicle boot, and dumped his body near a dip tank where it was later discovered. The Investigating Officer, Detective Sergeant Shiku, contacted the applicant by phone in March 2021 to request an interview. The applicant promised to attend after 2 weeks to allow him to secure a lawyer and attend to his sick father. He never appeared. Police obtained court orders to trace his address through Net-one and his identity particulars from the Registrar-General's office. When police visited his home, his wife confirmed he was aware police were looking for him but had gone to Beitbridge. The applicant's phone became unreachable, and a radio message was sent to all police stations. The applicant left for South Africa in April 2021 but was hijacked and returned to Zimbabwe. He was eventually arrested in April 2022 in Nkulumane, over a year after initial contact. His four co-accused had been arrested earlier and granted bail.

• Whether there were compelling reasons justifying the denial of bail despite the applicant's constitutional right to liberty under Section 50(1)(d) of the Constitution
• Whether the applicant's conduct in evading police for over a year demonstrated that he was a flight risk who would not stand trial if granted bail
• Whether the applicant should be treated differently from his co-accused who had been granted bail
• Whether the burden under Section 115C of the Criminal Procedure and Evidence Act (requiring exceptional circumstances for Part II 3rd Schedule offences) was discharged

The application for bail pending trial was dismissed.

Where an applicant for bail has demonstrably evaded arrest for an extended period (over a year) despite being aware that police sought to interview him regarding serious criminal allegations, this conduct constitutes compelling reasons under Section 50(1)(d) of the Constitution to deny bail, as it establishes on a balance of probabilities that the applicant is a flight risk who will not submit to due process if released. Co-accused persons need not be treated identically regarding bail where one has evaded arrest while others cooperated with authorities, as such differential conduct justifies differential treatment and does not constitute unfair discrimination. The constitutional right to bail and presumption of innocence must yield to the interests of justice where there is credible evidence that the accused will abscond if granted bail.

The court observed that circumstantial evidence may secure a conviction even where decomposition of a body prevents a post-mortem examination from determining cause of death, though this observation was made in response to counsel's argument rather than as a determination of the merits of the prosecution case. The court emphasized that it was not pre-judging the matter on its merits but focusing on whether the applicant would submit to trial. The court also commented on the importance of allowing the wheels of justice to turn unimpeded so that the applicant's guilt or innocence could be determined at trial, now that all accused persons had been accounted for and the docket was ready.

This case demonstrates the application of constitutional bail rights under Section 50(1)(d) of the Zimbabwe Constitution balanced against compelling reasons for denial under Section 117(2) of the Criminal Procedure and Evidence Act. It establishes that past conduct of evading arrest constitutes compelling evidence of flight risk justifying denial of bail. The case clarifies that co-accused need not be treated identically where their conduct differs materially, particularly regarding cooperation with law enforcement. It illustrates the court's willingness to exercise judicial discretion to call witnesses (the Investigating Officer) where the state's position appears inconsistent with evidence on record. The judgment reinforces that while bail is a constitutional right and the presumption of innocence must be respected, deliberate and prolonged evasion of police over more than a year provides sufficient grounds to deny bail in the interests of justice.