Edmore Shoshera and 4 Others v The State

On 27 February 2022, during a Citizens Coalition for Change Party (CCC) political rally at Mbizo 4 Shopping Centre, Kwe Kwe, violence erupted. Suspected agitators armed with various weapons assaulted people in the crowd. Several persons sustained serious injuries, and Mbongeni Ncube was stabbed with a sharp object and died on the spot. Motor vehicles were also damaged. Initially, 16 suspects were arrested for questioning by police at Jessy Lodge, Mbizo, Kwe Kwe. Only the five applicants were eventually charged with public violence and murder. The applicants denied the allegations, stating they were wrongly implicated. The 3rd applicant claimed he was arrested at the hospital after being attacked, while the 1st, 2nd, 4th and 5th applicants stated they were drinking at a lodge and had nothing to do with the rally. The applicants applied for bail pending trial.

• Whether the applicants were entitled to bail pending trial under section 50(1) of the Constitution of Zimbabwe
• What constitutes compelling reasons for denying bail under the Constitution
• Whether the state had discharged the burden of proving compelling reasons to justify continued detention
• Whether the seriousness of the offence alone is sufficient ground for denying bail
• The application of the presumption of innocence in bail applications
• Whether exceptional circumstances existed warranting the denial of bail for scheduled offences

The application for bail was granted in terms of the draft order.

Section 50(1) of the Constitution of Zimbabwe creates a presumption in favour of bail and shifts the burden to the state to prove compelling reasons for denying bail. Bold assertions by the state that grounds for refusing bail exist must be well-grounded on facts and substantiated with evidence. The seriousness of an offence alone is not sufficient grounds for denying bail. The state must provide adequate information linking accused persons to the alleged offence and demonstrating their specific roles. The presumption of innocence requires courts to lean in favour of liberty unless compelling reasons for continued detention are established.

The court observed that where the state refers to pending cases as grounds for opposing bail, sufficient details regarding those cases and their status must be furnished. It is unfair to deny bail based on previously charged offences that have not been prosecuted or where charges have been dropped. The court noted that Zimbabwean police have a proven track record of tracking and apprehending fugitives from justice, citing the cases of Masendeke and Chidumo, and that stringent conditions can be imposed to allay fears of abscondment. The court also commented that where several persons are detained on initial arrest on suspicion of committing an offence, the state must provide the court with adequate information indicating how the accused persons ultimately charged are alleged to have committed the particular crime and the roles they played.

This case reinforces the constitutional protection of the right to bail in Zimbabwe under section 50(1) of the Constitution. It emphasizes that the burden is on the state to prove compelling reasons for denying bail, reversing the common law position. The judgment clarifies that mere assertions by the state without factual substantiation are insufficient to deny bail. It confirms that even in serious cases involving scheduled offences like murder, the presumption of innocence and liberty must prevail unless compelling reasons are established. The case is significant for establishing that the state must provide adequate information linking accused persons to alleged offences and their specific roles, particularly in cases involving multiple suspects initially arrested together.