His legal
representatives paid his bail at the Harare magistrate’s court yesterday and
surrendered the passport and title deeds to properties demanded as extra
security as contained in the order by High Court Judge Justice Gibson Mandaza.
Upon release,
Magaya approached the High Court challenging his placement on remand by the
magistrate at the initial remand hearing last Monday even though more than 48
hours had elapsed since his arrest on Saturday last week.
Magaya argues
that the magistrates court’s failure to release him on initial appearance was a
gross violation of the Constitution, which should not be left unchallenged.
On initial
appearance, Magaya, through his lawyers Admire Rubaya, Everson Chatambudza and
Advocate Sylvester Hashiti, applied for immediate release, arguing that he was
over-detained and that the Constitution under section 50 (3) guarantees
immediate release on that ground.
The State,
represented by Clemence Chimbari, admitted that Magaya was over-detained,
saying it was regrettable, but argued that he should not be released, but
should seek civil remedies.
Presiding
Magistrate Marewanazvo Gofa ruled in favour of the State and dismissed Magaya’s
challenge, saying he should seek civil remedies.
She then
granted Magaya’s wife, Tendai, $500 bail.
After his
release on bail yesterday, Magaya, represented by Rubaya and Chatambudza Legal
Practitioners, filed a review application challenging the magistrate’s
decision, which he said should not be left standing in a democracy.
He has cited
Magistrate Gofa as the first respondent and the Prosecutor General as the
second respondent, saying the court acted outside the law and Constitution.
The application
said the magistrate’s decision effectively rewrote the people’s will as
expressed in the Constitution and created a precedent that would allow State
actors to violate the fundamental rights with virtual impunity.
He said the
decision took the country back to the Lancaster House constitution, which was
discarded by Zimbabweans upon the advent of the new Constitution in 2013.
Magaya said the
court’s decision was flawed and should not be left unchallenged, as it would
open floodgates of injustices.
He said his
challenge seeks to correct the excesses of the State in that the magistrate
sided with the Prosecutor General.
“In effect, the
State effectively submitted that it was permissible to detain any person
arrested and held in custody for as long as it deems fit, well beyond the
constitutionally prescribed 48-hour limit, without affording that person any
meaningful recourse before a criminal court.
Magaya said the
conduct of the State may excite some quarters, but it set a bad precedent which
has no room in a constitutional democracy.
“If unchecked,
this arbitrary erosion of liberty will metastasise to an extent that would
embolden law enforcement agents to regard themselves as a law unto their own,”
he said.
Magaya said the
court failed to interpret the constitutional provision and offered the wrong
remedy.
“Her finding
that the remedy for a breach of section 50(3) of the Constitution lies in civil
damages rather than the immediate and unconditional release of the
over-detained person, which is the solution provided by the same provision to
over-detention, constitutes a complete and brazen subversion of the
Constitution of the Republic of Zimbabwe. ‘Must’ means must.
“The phrase
‘must be released immediately’ is not merely directory but peremptory, creating
a constitutional obligation that admits of no judicial discretion. That
provision not only creates an obligation to release an over-detained person on
the law enforcement agents, but it also applies to whichever court the
over-detained person would have been taken to for purposes of appearance
intended to extend their detention,” reads the application.
Magaya is now
seeking to have the lower court’s decisions set aside. Herald
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