Fortunately, the children who were arrested and
charged with public violence in Harare,
Chitungwiza and Bulawayo were legally
represented by Justice for Children, Legal
Resources Foundation and Zimbabwe Lawyers
for Human Rights. It is however critical to note
that these lawyers were not engaged by the
prosecution or the courts to offer legal
representation, as often happens, but rather they
had conducted monitoring visits at police
stations and prisons where children who needed
legal representation were identified. Had it not
been for these NGO legal aid organisations, the
children would have appeared in court without
legal representation. No cases were recorded
where legal practitioners were denied an
opportunity to legally represent children in
courts.
4.5
Release Without Bail
In terms of section 135 of the Criminal
Procedure and Evidence Act [Chapter 9:07],
when a child is accused of an offence other than
treason, murder or rape, a judge, magistrate or
police officer has the power to release the child
without bail into the custody of the parent or
guardian or into a place of safety.
Almost all children were released into the
custody of their guardians and parents on initial
appearance in the Magistrates Courts. The gross
exception was one 16-year-old child who
appeared before the Magistrates Court at Rotten
Row in Harare among a group of 10 accused
persons arrested in Mabvuku. The group had
already spent 48 hours in police custody at
Mabvuku Police Station, and on initial
appearance in court on 16 January 2019, bail
was denied for the entire group – including the
child. Making it worse, the group was remanded
in custody at Chikurubi Maximum Security
Prison, as opposed to Harare remand Prison.
The child was only released on free bail into the
custody of his mother on the 25th of January
2019. In Bulawayo, 14 children were remanded
at Khami Prison, but that was because no proof
of their age had been produced in court on initial
appearance. The minors were subsequently
released once their birth certificates were
produced.
4.6
Separation of Trials
There were instances where children were
jointly charged with adults, the lowest number
being three recorded in Mbare Magistrates Court
in Harare and the highest being 9 children
recorded at Tredgold Magistrates Court ion
Bulawayo. Generally, separation of trials was
granted in cases in which applications were
made, where children were jointly charged with
adults. The State however vigorously opposed
some of these applications by lawyers. In one
case at Rotten Row in Harare, the State opposed
the separation of trial application, but relented
after a while and openly asked the court for a
chance to make “consultations”. The court shied
away from making a ruling. Consultations were
then done – clearly with the prosecutor’s
superiors during adjournment – and the
prosecutor returned to court with an instruction
that the child be released. Only then was the
child released.
4.7
Irregularities in the Courts
In quite an unprecedented fashion, due process
was truncated en masse in the courts. What
began to emerge clear was that these were not
isolated incidences of courts and prosecutors
butchering and mutilating legal process out of
recognition; rather, this was systematic and
consistent throughout courts trying public
violence cases across the country. Irregularities
that were experienced in the courts include the
following:
Rushed Trials and Proceedings
Prosecutors and Magistrates insisted that trials
commence on initial appearance, before the
children and their lawyers had time to prepare
their defences. Initial appearances are ordinarily
reserved for bail and remand proceedings. It is
highly irregular for a matter to proceed to trial on
the date of initial appearance, let alone without
the defence counsel having been given access to
the state papers and having been accorded the
opportunity to prepare the defence. On 23
January 2019, for instance, lawyers representing
3 children aged 16 and 17 who were facing
charges of public violence attended to the
children’s initial appearance at the Mbare
Magistrates Court. The children were placed in
24 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests
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