Priscah Mupfumira v The State

Priscah Mupfumira, a politician and Member of Parliament who was Minister of Tourism and Hospitality at the time, was arrested and appeared at the Magistrates Court on 26 July 2019 facing seven counts of abuse of office and corruption related to her conduct as former Minister of Public Service, Labour and Social Welfare. The charges involved allegations that she improperly used her ministerial position to obtain a US$90,000 loan from NSSA for a vehicle, directed unauthorized payments totaling hundreds of thousands of dollars from NSSA's budget for personal and political activities, and abused her office by showing favor to Metbank resulting in NSSA making improper investments totaling millions of dollars. The State produced a certificate from the Prosecutor-General in terms of section 32(3b) of the Criminal Procedure and Evidence Act requesting her detention for 21 days. The Acting Chief Magistrate refused to entertain her bail application, holding that the Prosecutor-General's certificate ousted the court's jurisdiction to determine bail. Mupfumira appealed to the High Court under Rule 6(1)(f) of the Bail Rules.

• Whether sections 32(3b) and 32(3c) of the Criminal Procedure and Evidence Act are in conformity with section 50(1)(d) of the Constitution which provides that arrested persons must be released unless there are compelling reasons justifying continued detention
• Whether the High Court has jurisdiction to entertain a bail appeal where a Prosecutor-General's certificate has been issued under section 32(3b)
• Whether the magistrate erred in refusing to determine the bail application based on the Prosecutor-General's certificate
• What constitutes 'compelling reasons' under section 50(1)(d) of the Constitution to justify continued detention
• Whether there were compelling reasons to deny bail in this case based on likelihood of absconding and interference with witnesses and investigations

1. The order for detention of the appellant for 21 days granted by the Acting Chief Magistrate on 27 July 2019 was set aside. 2. In view of compelling reasons justifying the appellant's continued detention, the appeal to be granted bail was dismissed.

Sections 32(3b) and 32(3c) of the Criminal Procedure and Evidence Act are inconsistent with section 50(1)(d) of the Constitution of Zimbabwe and are therefore invalid to the extent of the inconsistency. The invalidity occurred immediately upon promulgation of the Constitution in 2013, not when subsequently declared by a court. Section 50(1)(d) of the Constitution requires that arrested persons must be released unconditionally or on reasonable conditions unless there are compelling reasons justifying continued detention, and this determination must be made by a court after hearing both the accused and the State. A Prosecutor-General's certificate cannot oust the jurisdiction of courts to determine bail applications. Compelling reasons to deny bail may include: (1) the serious nature of charges and severity of likely punishment creating risk of absconding; (2) the accused's ability and means to abscond to another jurisdiction; (3) the accused's powerful position in society creating a well-grounded apprehension of interference with witnesses and investigations, even where such interference may be indirect through intimidation resulting from the accused's status rather than direct contact; and (4) the need to protect the integrity of complex investigations, particularly in corruption cases involving complicit witnesses who benefited from the alleged abuse of office.

The court observed that powerful people in society have a manner of affecting ordinary people around them using their power and authority, and such interference is often covert and difficult to detect or prove. Professional people like auditors, police and lawyers can withstand such interference due to their training, but ordinary people cannot. The court noted that just the fact of a powerful person being out of custody can intimidate witnesses from coming forward. The court also observed that corruption investigations are particularly complex because informants are usually complicit in the commission of the offense and beneficiaries are unlikely to volunteer information against their benefactor. The court commented that having no passport will not necessarily prevent absconding, citing examples of persons who left Zimbabwe through unauthorized exits, or who obtained their passports for medical reasons and failed to return, or who absconded while on bail (referencing cases of Mzembi and former judge Benjamin Paradza). The court noted that the appellant had been relieved of her Cabinet position during the proceedings but remained a politician and Member of Parliament, thus retaining significant power in her community, political structures and constituency.

This case is significant in Zimbabwean constitutional jurisprudence for definitively establishing that sections 32(3b) and 32(3c) of the Criminal Procedure and Evidence Act, which allowed the Prosecutor-General to certify detention and oust courts' jurisdiction over bail, are unconstitutional and became invalid upon promulgation of the 2013 Constitution. The judgment reinforces the supremacy of the Constitution and the principle that constitutional rights, particularly the right to bail under section 50(1)(d), cannot be overridden by inconsistent legislation. It clarifies that the constitutional test for pre-trial detention is whether 'compelling reasons' exist to justify continued detention, which must be determined by courts after hearing both parties, not by executive certificate. The case provides important guidance on what constitutes compelling reasons, particularly regarding powerful political figures and the balance between liberty rights and protection of the administration of justice. It demonstrates that even where statutory provisions are declared invalid, bail can still be denied on constitutional grounds where compelling reasons exist.