Felix Biri v The State

The applicant, Felix Biri, was charged with public violence under s 36(1)(a) of the Criminal (Codification and Reform) Act following an incident on 14 June 2022 in Nyatsime area, Beatrice. It was alleged that the applicant, together with accomplices, conspired to avenge the murder of Moreblessing Ali by burning down a ZANU PF Chairperson's house, torching a gazebo, destroying windows of shops and beerhalls, looting groceries and electrical gadgets, damaging motor vehicles and houses, and assaulting community members. The applicant was arrested on 29 September 2022, three months after the alleged offence. He appeared at Harare Magistrates Court on 1 October 2022 and was remanded in custody. On 5 October 2022, he applied for bail directly to the High Court, stating that during his Magistrates Court appearance, individuals wearing ZANU PF regalia were threatening to burn down the courthouse if he was granted bail. The applicant contended he was a builder working in Westgate, had a house in Nyatsime, was a family man with minor children, had no passport, and had an alibi as he was at work during the alleged violence.

• Whether the High Court has jurisdiction to hear a bail application for a non-Third Schedule offence as a court of first instance
• Whether the applicant had provided justifiable reasons for approaching the High Court instead of the Magistrates Court
• Whether bail should be denied on the ground that co-accused persons were denied bail
• Whether there was likelihood that the applicant would interfere with witnesses if granted bail
• Whether the applicant's release would hamper police efforts to arrest outstanding accomplices
• Whether there was likelihood that the applicant would abscond trial
• Whether the release of the applicant would undermine the proper functioning of the criminal justice system
• The interpretation and application of the constitutional right to bail under s 50(1)(d) of the Constitution

Bail application granted. The applicant was ordered to: (1) deposit $20,000 with the Clerk of Court at Harare Magistrates Court; (2) reside at House number 707, 29 St Kuwadzana 1, Harare until the matter is finalized; (3) not interfere with investigations and witnesses; and (4) report to CID Law and Order once every week on Fridays between 6am and 6pm.

The binding legal principles established are: (1) The High Court has original jurisdiction to hear bail applications for all offences, including non-Third Schedule offences, as a court of first instance under s 171(1)(a) of the Constitution and s 116(a) of the CPEA, though exceptional circumstances should justify approaching the High Court for non-Third Schedule offences to avoid overburdening the court; (2) Each accused person in a joint charge must be considered individually for bail purposes based on their personal circumstances, and bail cannot be denied solely because co-accused were denied bail, as this would violate constitutional rights to bail, liberty, and the presumption of innocence under ss 50(1)(d), 49, and 70(1)(a) of the Constitution; (3) The State must substantiate grounds for opposing bail with cogent reasons and proper information beyond bald assertions, particularly regarding likelihood of absconding, interference with witnesses, and undermining the criminal justice system as set out in s 117(2) and (3) of the CPEA; (4) Bail is a constitutional right under s 50(1)(d) of the Constitution, with the granting of bail being the general rule and denial the exception, requiring compelling reasons justifying continued detention; and (5) Zimbabwean courts must interpret bail rights consistently with international obligations under the ICCPR and ACHPR, which establish pre-trial detention as exceptional.

The court made several important observations: (1) The practice of discouraging accused persons facing non-Third Schedule offences from applying for bail in the High Court is purely practical to avoid overburdening the five High Court stations in Zimbabwe, not a jurisdictional limitation; (2) The court noted that s 56(1) of the Constitution on equality before the law demands that when one accused is granted bail, others should be granted bail as well unless there are compelling reasons specific to the individual not to do so; (3) The court observed that the right to bail is tied to the right to be presumed innocent (s 70(1)(a)) and the right to personal liberty (s 49), and these rights must be respected, protected, promoted, and fulfilled before conviction under s 44 of the Constitution; (4) The court discussed the landmark international cases of Hill v Spain and African Commission (Saif al-Islam Gaddafi) v Libya in interpreting bail rights; and (5) The court made observations suggesting the applicant's arrest may have been politically motivated, noting allegations of abduction by ZANU PF members and the applicant's political activities as a prospective CCC councillor candidate.

This case is significant in Zimbabwean criminal procedure law for several reasons: (1) It clarifies that the High Court has concurrent original jurisdiction with Magistrates Courts to hear bail applications for non-Third Schedule offences, though exceptional circumstances must justify approaching the High Court directly; (2) It establishes that bail cannot be denied solely on the ground that co-accused were denied bail, as each accused must be assessed individually based on their personal circumstances; (3) It reinforces the constitutional right to bail under s 50(1)(d) of the Constitution, emphasizing that bail is the rule and detention pending trial is the exception requiring compelling reasons; (4) It sets standards for the State's burden in opposing bail, requiring more than bald assertions and demanding well-grounded, reasonably substantiated grounds with proper information; (5) It incorporates international human rights standards from the ICCPR and ACHPR into the interpretation of bail rights in Zimbabwe; and (6) It demonstrates judicial protection of accused persons' rights in politically charged circumstances.