Mupfumira’s detention illegal: Advocate Thabani Mpofu

Prominent lawyer and advocate, Thabani Mpofu has said on record that the State acted unlawfully by applying for cabinet minister Priscah Mupfumira’s further detention as it is not in line with the constitution.

Mpofu indicated that the section of the law in which the application was based on was illegal as it is not in line with the constitution, hence the need for the State to review and set aside its move.

In terms of the Constitution which is the supreme law of the land and by which any law inconsistent with it is invalidated automatically an invalidated upon the coming in of the new constitution,” said Mpofu.

A person who has been arrested and who appears in court for the first time is entitled to their immediate release with or without conditions, that is the right that sets in upon the arraignment of the person before a court, they must be released and that is why in terms of the procedure brought by the new constitution, no accused person has an obligation to apply for bail.

The accused simply stands up in the court and indicates their desire to be admitted to bail, it is for the State to either consent or oppose bail and in that regard it is the State that must place before the court exceptional considerations which justify the continued detention of that person.

“Upon the arraignment of an accused person, that person must be admitted to bail with or without conditions, the constitution then contemplates the fact that there may be deserving cases and calls those exceptional cases, it says in those deserving cases and that are exceptional by nature they can be continued detention.

What are those cases? those are the cases where the State manages to show, manages to prove that an accused person is not entitled to be released on bail.

“While it is true that Section 32 of the Criminal Procedure and Evidence Act provides for this 21 days nonsense, the position which has already been taken by the Constitutional Court is that every law which is inconsistent with the Constitution becomes automatically null and void and became void upon the coming in of the new constitution there is actually no need for an order of court declaring the invalidity of the law, the law is invalid, what this means is that the State could not have legitimately and lawfully applied for the detention of the lady on which circumstances this issue has now arisen for debate.

“What the State did was unlawful, is reviewable and ought to be set aside and set aside urgently in the national interest. If the State believes it has a very strong case against this lady, what it must do is to set and to establish a basis upon which the court can deny her bail but to say she should not be given the opportunity to apply for bail is contrary to our constitutional order, contrary to our constitutional culture, contrary to law and it does not matter that one might not like her but the bottom line is that kind of illegality must not be allowed.”

This comes after the Acting chief Magistrate Munamato Mutevedzi remanded the Tourism Minister who is facing seven counts of criminal abuse of office to 21 days in custody.