holding cells from around 1000hrs and initially
appeared in court at around 1700hours. The
prosecutor insisted that the matter go for trial
despite the fact that the defence lawyer had only
been furnished with state papers at 1700hrs. The
children's legal counsel had to vigorously argue
against instant trial. The Magistrate only granted
postponement for the trial to proceed the very
next day at 11.15 am. The same happened at
Rotten Row Court, Chitungwiza Court and at the
Bulawayo Courts.
Although one can argue that the principles of a
fair trial provide that an accused person has a
right to have their matter dealt with expediently,
in this scenario courts were sanctioning fast-track
trials without affording children adequate time
to prepare for their defences. The courts were
not entertaining postponement of matters, and
the prosecutors appeared under instruction to
refuse and contest any postponements. This
offends provisions of the International Covenant
on Civil and Political Rights and national laws
that stipulate that there should be adequate time
and facilities for the preparation of the defence
when dealing with child offenders.48
The public violence trials generally, were
characterised by mass trials and the dismissal of
bail applications and other pre-trial applications
made by legal practitioners. None of the adults
were being granted bail whatsoever, and this
appeared to be a pattern in courts across the
country in cases of this nature. It appeared that
prosecutors and Magistrates were under
instruction to act in a particular way. In respect of
prosecutors, this was informally confirmed on a
number of occasions by prosecutors during
informal conversations with lawyers. One
p r o s e c u t o r c o n f i r m e d t h a t e v e r y d a y,
prosecutors were reporting to their superiors on
the progress of cases, on which lawyers
appeared representing the accused, on what
form of applications the lawyers were making,
and on how the Magistrates were ruling.
Challenges that lawyers faced with prosecutors
included prosecutors not furnishing state papers
to defense counsel on time; prosecutors
ambushing accused children and their lawyers
into trial, with the support of Magistrates;
prosecutors refusing to entertain requests for
diversion of cases; and prosecutors opposing
certain applications that one could never expect
opposition on, such as separation of trials of
children from those of adult co-accused, and
release of children on free bail into the custody
of their guardians.
In Marondera, however, there was a single case
of public violence involving a child that came
from Macheke, and prosecution was refused.
Proceedings not Conducted in Camera
When a child is being tried, the gallery should be
cleared during proceedings. Other than court
officials, only the child's parents or guardians are
allowed in the court room, along with legal
representatives of the child and the Department
of Social Welfare. This is done so as to avoid
harm being caused to a child by undue publicity
which might have serious repercussions on the
child. Children in conflict with the law have a
right to privacy from the time they are arrested
until the matter is completed in court.49
Due to the nature of the arrests that saw children
arrested and co-charged with adults in groups,
children made initial appearances in court
rooms that were no cleared, and included
members of the media. Almost all preliminary
proceedings where not done in camera.
However, most if not all the trials were properly
held in camera.
4.8
Convictions and Acquittals
The State’s evidence, as with most cases
involving public violence in January 2019, was
mostly circumstantial.
In Chitungwiza, lawyer Job Sikhala who
represented several minors in court remarked
that some of the evidence brought to court as
exhibits was not only laughable but absolutely
shocking . Notwithstanding , a number of
children were convicted.
48. Article 13 (3) (b) of the International Covenant on Civil and Political Rights.
49. Article 40 (2) (b) (vii) of the UNCRC and Section 195 of the Criminal Procedure and Evidence Act [Chapter 9:07].
25 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests
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