On 1 April 2009, eight Congolese refugees appeared before the Magistrate at Harare charged with defeating or obstructing the course of justice under section 184(1)(e) of the Criminal Law (Codification and Reform) Act. They were alleged to have interfered with a witness who had reported a case of child abuse against a fellow refugee. The accused allegedly approached the witness at her residence and threatened her with unspecified action if she continued to implicate their friend. The witness was now living in fear and uncooperative with police. The state opposed bail arguing the accused were of no fixed abode, having given friends' addresses as their own, and were likely to interfere with investigations. The Magistrate granted bail to all accused with minimal inquiry, setting bail at USD10 each with conditions including residence at given addresses and weekly reporting at Hatfield police station. Four of the accused had given inconsistent addresses - stating 56 Airport Road Hatfield to police but Tongogara Refugee Camp to the court. The addresses were never verified despite the accused being unrepresented foreign refugees in custody.
1. The proceedings in the Magistrates Court sitting at Harare on 1st April 2009 are quashed and set aside. 2. The matter is remitted to the Magistrates Court for a fresh hearing and determination.
A magistrate dealing with a bail application involving unrepresented foreign refugees must conduct a thorough and proper inquiry into all relevant circumstances before making a determination. This includes: (1) verifying residential addresses, particularly where the state submits that accused are of no fixed abode; (2) investigating whether refugees can lawfully reside at addresses outside designated refugee camps as required by the Refugees Act; (3) ensuring bail conditions are practical and enforceable given the accused persons' circumstances; (4) making necessary inquiries to establish facts that are readily available through simple verification; and (5) ensuring that the interests of justice are upheld by safeguarding both individual liberty and the administration of justice. A perfunctory determination without adequate inquiry, particularly where accused persons are in custody and unrepresented, fails to meet the standard that justice must not only be done but must be seen to be done.
The court made observations about the challenges facing unrepresented accused persons who are foreign refugees in custody, noting they are 'severely handicapped' being 'in captivity in a foreign land without legal representation.' The court observed that granting bail in the absence of vital information was not doing the applicants a favour because it rendered them vulnerable on appeal. Bhunu J reminded magistrates that judicial work is a painstaking job requiring unwavering dedication to duty, and that taking the easy way out can easily compromise the ends of justice either way. The court also commented on the current economic hardships making it questionable whether refugees could realistically travel from Chipinge to Harare weekly to report, questioning the sincerity of respondents who opted for such a condition.
This case establishes important principles regarding the duty of magistrates to conduct thorough inquiries in bail applications, particularly where accused persons are unrepresented foreign refugees. It emphasizes that judicial officers cannot take shortcuts or make the 'easy way out' decisions without full facts, especially when dealing with vulnerable accused persons in custody. The case reinforces that the interests of justice require balancing individual liberty with the administration of justice and reasonable state requirements. It serves as a reminder that merely going through the motions without proper inquiry undermines justice and leaves decisions vulnerable on appeal. The case is particularly significant in the context of refugee law, highlighting the intersection between criminal procedure, bail law, and the regulatory framework governing refugees' movements and residence under the Refugees Act.