Tungamirai Madzokere and 28 Others v The State

29 accused persons were charged with murdering a police officer in the course of duty (alternatively public violence) allegedly during politically motivated violence. They were remanded in custody upon indictment to the High Court in terms of s 66 of the Criminal Procedure and Evidence Act. They applied for bail, but were denied on 19 June 2012 on the grounds that they had failed to discharge the onus under s 117(6) of the Criminal Procedure and Evidence Act. Section 117(6) requires accused persons charged with killing a law enforcement officer to remain in custody unless they adduce evidence satisfying the court that exceptional circumstances exist permitting their release. The accused persons had merely presented defence outlines rather than evidence. Some of the accused had previously been granted bail by consent before indictment. They now sought leave to appeal the denial of bail, arguing inter alia that they intended to challenge the constitutionality of s 117(6). Their trial was underway at the time of this application.

• Whether the accused persons had adduced sufficient evidence to satisfy the court that exceptional circumstances existed to warrant their release on bail under s 117(6) of the Criminal Procedure and Evidence Act
• Whether a defence outline constitutes 'evidence' for purposes of discharging the onus under s 117(6)
• Whether leave to appeal should be granted on the basis of an intended constitutional challenge that was never raised before the trial court
• Whether the initial grant of bail by consent to some accused could constitute exceptional circumstances under s 117(6)
• The standard of proof required under s 117(6) and whether it differs from ordinary bail applications under s 117A

The application for leave to appeal to the Supreme Court was granted.

For purposes of s 117(6) of the Criminal Procedure and Evidence Act, a defence outline does not constitute 'evidence' sufficient to discharge the onus of proving exceptional circumstances. A defence outline is merely an assertion or summary of an intended defence, whereas evidence is the mode of proving or disproving such assertions. Section 117(6) overrides other bail provisions in the Act by virtue of its opening phrase 'Notwithstanding any provision of this Act', and sets a higher standard of proof through the requirement of 'exceptional circumstances' - a standard that takes the burden outside common human experience and ordinary practice. Accused persons charged with killing law enforcement officers must adduce actual evidence, not mere assertions, to satisfy the court that exceptional circumstances exist warranting their release on bail.

The court made several obiter observations: (1) There is nothing unconstitutional about legislation prescribing higher standards of proof for exceptionally serious offences, as attacks on law enforcement officers constitute attacks on the government's center of power and are extremely destabilizing if not a declaration of war against the state; (2) If Parliament can take extraordinary measures to protect wild animals under the Parks and Wild Life Act, it can certainly do so to protect law enforcement officers; (3) The defence's failure to mount a constitutional challenge under s 24 of the Constitution suggested they did not genuinely believe the provision was unconstitutional; (4) It remained doubtful whether the State's initial consent to bail could amount to exceptional circumstances, though a different court might reach a different conclusion on this point; (5) The application was essentially 'chasing a moving target' as the trial was progressing and the case complexion kept changing, which might make it difficult for the Supreme Court to determine the matter appropriately; (6) The section is not reserved for any class of persons but applies to anyone alleged to have committed the offence.

This case is significant in Zimbabwean criminal procedure law for clarifying the meaning and application of s 117(6) of the Criminal Procedure and Evidence Act, particularly: (1) the distinction between a 'defence outline' and 'evidence' in the context of bail applications; (2) the heightened standard of proof required for bail where an accused is charged with killing a law enforcement officer; (3) the mandatory and overriding nature of s 117(6) which excludes application of ordinary bail principles; (4) the constitutional validity of prescribing exceptional bail standards for serious offences against law enforcement officers; and (5) procedural requirements for raising constitutional challenges. The case demonstrates the judiciary's approach to balancing individual liberty against state security concerns where allegations involve attacks on law enforcement officers.