The High Court has castigated high-profile individuals
facing corruption charges for abusing bail conditions, seeking passports for
travel for medical or business reasons not revealed in the original bail
application and thus rendering the court-imposed restrictions ineffective.
The court also noted that some said they were too ill to
stand trial, but were able to run around and travel.
When setting bail conditions for those with resources to
travel easily and who are facing serious charges, the courts normally seek more
than just cash bail, also wanting the surety of the accused person’s up-market
home and especially stopping them from leaving Zimbabwe or living in another
country. They usually have to frequently call at a police station near their
home to prove they are still in the country.
Justice Pisirayi Kwenda yesterday made a scathing attack on
former Zimbabwe Power Company (ZPC) chairperson Stanley Nyasha Kazhanje and
former Zimbabwe National Road Administration chief executive Frank Chitukutuku.
Both approached the High Court separately, and in the end unsuccessfully,
seeking the temporary release of their travel documents.
Kazhanje, is out on bail pending his High Court appeal
against both conviction and sentence for allegedly concealing a US$10 000
payment he received from Intratrek Zimbabwe chief executive Wicknell Chivayo, a
conviction that earned him a one-year jail term. He wanted to have his passport
returned to enable him travel to Mozambique on a business trip.
Chitukutuku is on bail pending trial and had asked for the
release of his passport to travel to South Africa to seek urgent medical
treatment. He is charged with abusing his office by corruptly influencing the
awarding of contracts worth US$20 million for the rehabilitation of roads to
Fremus Enterprisers (Pvt) Ltd without following tender procedures.
Delivering the ruling in the case of Kazhanje, Justice
Kwenda noted the former ZPC boss had systematically subverted the conditions of
his recognisance under the guise of temporary variations.
It was the court’s view that every condition of bail was
there to serve a particular purpose separate and distinct from that served by
the other conditions.
“All the conditions work together as a unit to ensure that
the accused person or the convict does not flee or is incentivised to stand
trial or prosecute his appeal,” said Justice Kwenda. “Bail conditions are not
tradeable commodities.”
The court, he said, did not operate the commercial activity
of barter and would only alter the bail conditions if it was of the opinion
that it was necessary to do so.
Justice Kwenda also took a judicial notice of the recent
abuse of the temporary release of passports and waiver of reporting conditions
by the high-profile individuals facing trial on corruption charges whose
matters have come before the higher court.
“The fugitives are incapacitated by illness to attend court
and yet alive and kicking for other purposes,” he said.
“While the accused can flee the jurisdiction without a
passport, it is difficult to lawfully live in a foreign country without a
passport. Therefore, the holding on to the passport acts as a restraint,” he said
dismissing the application.
The court also made similar observations on Chitukutuku,
who could not explain why he failed to advise the court at his initial bail
hearing that he required his passport to travel to South Africa for specialist
treatment every three months.
Thus, the judge said, a suspect who withholds information
known to him at his or her bail application does so at his or her peril because
they will not benefit from the restricted powers provided under the Criminal
Procedure and Evidence Act to vary the conditions. The court found no merit in
Chitukutuku’s application and declined his request for the temporary release of
his passport. Herald
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