Lizwe Munenge and Elijah Phiri v The State

The applicants were arrested on 27 April 2022 in connection with illegal wildlife activities. Four other accused persons were spotted along Dete-Binga road, each carrying elephant tusks without permits. These four accused persons implicated the two applicants. Police followed indications to a base in the bushes where the applicants were found and arrested. At the base, a search led to the recovery of two unlicensed firearms: an AK-47 with a magazine loaded with 29 rounds (with unidentified serial number) and a point 375 rifle (serial number 7256042). The applicants were charged with: Count 1 - contravening section 82(1) of the Parks and Wildlife Regulations S.I. 326/1990 as read with section 123(1)(B) of the Parks and Wildlife Act (acquiring, possessing, selling or transferring raw unmarked ivory without a permit); and Count 2 - contravening section 4(1) of the Firearms Act (possessing firearms and ammunition without a firearm certificate). The applicants denied the charges, claiming they were hired by accused 4 for USD20 each to slaughter an animal and were cutting meat when arrested. They denied possessing ivory or firearms and claimed they did not know how to use firearms.

• Whether the applicants should be granted bail pending trial
• Whether there were compelling reasons to refuse bail in the interests of justice
• Whether the applicants posed a flight risk
• Whether release on bail would undermine the objectives and proper functioning of the criminal justice system
• The application of section 117 of the Criminal Procedure and Evidence Act to the facts of the case

The application for bail was dismissed and the applicants were ordered to remain in custody pending trial.

In bail applications, where an accused faces serious charges (wildlife crimes and illegal firearms possession) that carry lengthy prison sentences, and where there is a strong prima facie case including arrest at the scene with weapons of war (AK-47s), evidence of attempted flight at arrest, and potential for interference with ongoing investigations, the cumulative effect of these factors can establish that release on bail would prejudice the interests of justice under section 117 of the Criminal Procedure and Evidence Act. The court must consider each case on its merits, weighing the presumption of innocence and right to liberty against factors indicating flight risk and potential undermining of the criminal justice system. Where the temptation to abscond is real given the gravity of charges and likely sentences, and where bail conditions cannot adequately restrain the risk of interference with investigations, refusal of bail does not amount to anticipatory punishment but is justified in the interests of justice.

The court observed that in Zimbabwean law, persons are presumed innocent until their guilt has been proved, and whenever the interests of justice will not be prejudiced by pre-trial release, courts should lean in favour of liberty and grant bail, particularly if the offence is not likely to attract a prison sentence. The court noted that an accused person cannot be kept in detention pending trial as a form of anticipatory punishment. The court also commented that it would be for the trial court to decide, on the evidence before it, whether the applicants' version (that they were innocently hired to slaughter an animal) was reasonably possibly true, but for purposes of the bail application, the State had a strong prima facie case. The court further observed that the finding of a strong prima facie case is not the end of the inquiry in bail applications.

This case demonstrates the Zimbabwean courts' approach to bail applications in serious wildlife and firearms offences. It illustrates how courts balance the presumption of innocence and the right to liberty against the interests of justice, particularly where serious offences involving wildlife poaching with military-grade weapons are involved. The judgment reinforces that the seriousness of charges, the strength of the State's case, evidence of flight risk (including attempted escape at arrest), and the potential for undermining the criminal justice system can collectively justify pre-trial detention. The case is significant for establishing that possession of military-grade weapons (AK-47s) in the context of wildlife crimes can be a decisive factor in refusing bail, as it demonstrates a level of organization and danger that goes beyond ordinary criminal activity and threatens public safety and the proper functioning of the justice system.