Category: News Feeds

Texas Congressman John Ratcliffe represents a safe Republican district where he routinely cruises to victory with margins approaching 50 percent. This might explain how he got away with telling a pile of whoppers about his time in the U.S. Attorney’s Office — with no real opponent, there was no one to check. But politics ain’t beanbag, and now that Trump has nominated Ratcliffe to replace Dan Coates as the Director of National Intelligence, the media is starting to dig.

Even before the revelations about Ratcliffe’s history of exaggerations, he was already facing criticism for his thin national security résumé.

Previous DNIs had significant military, foreign relations, and intelligence experience under their belts. But Trump, who describes the intelligence agencies as having “run amok,” clearly values Ratcliffe’s full-throated attacks on the very intelligence apparatus he’s nominated to supervise.

On March 24, Ratcliffe told Fox’s Maria Bartiromo, “Think about that, a dossier funded by the Democrats, peddled through the Obama intelligence community, falsely verified by the Obama Justice Department, then sold to the American people by those very same elected Democrats and willing folks in the media,” perpetuating the lie that Christopher Steele’s dossier was the basis for the entire Russia investigation, and thus the Mueller report is somehow fruit of the poison tree.

So, aside from his time as mayor of the Texas town of Heath, population 7,000, what national security experience does Ratcliffe bring to the table? Well, in 2004, President Bush appointed him Chief of Anti-Terrorism and National Security for the Eastern District of Texas. Which sounds highly impressive, and, indeed, his House website boasts that the Congressman “put terrorists in prison.” But as the New York Times points out, the only terrorism prosecution during Ratcliffe’s tenure appears to have been an Iraq-war veteran with PTSD charged with building a pipe bomb.

Ratcliffe has faced repeated criticism for overstating his role in the prosecution of a domestic group accused of funding Hamas bombers. A 2015 press release posted on his House website says, “When serving by special appointment in U.S. v. Holy Land Foundation, he convicted individuals who were funneling money to Hamas behind the front of a charitable organization.” Except the Holy Land Foundation prosecution took place in the Northern District of Texas, and Ratcliffe’s sole contribution appears to have been a retrospective examination of what went wrong with the first disastrous prosecution which resulted in an embarrassing mistrial. (The defendants were later convicted on retrial.) So, no, the Congressman did not “convict” anyone in this case.

Finally, Ratcliffe’s official bio claims that he “arrested 300 illegal aliens in a single day.” No doubt this is intended to evoke images of a steely-eyed lawman slapping the cuffs on criminal after criminal with his own giant hands. But Ratcliffe would have had to be able to bend the space time continuum to be present for simultaneous raids on Pilgrim’s Pride poultry plants in Texas, Florida, Tennessee, Arkansas, and West Virginia. The number of people he arrested was actually … ZERO. But we’re sure the hatred for undocumented immigrants is real.

In normal times, these false claims might sink a nominee. But these are not normal times. The Times reports that Senate Intelligence Chair Richard Burr privately counseled the White House against nominating someone who has  already politicized the process by accusing the intelligence community of “spying” on Trump’s campaign. And Ratcliffe’s thin CV isn’t helping, either. But now that the nomination is official, Burr has changed his tune and pledged to support Trump’s guy. So, barring any major scandal breaking, it’s a safe bet Ratcliffe can scrounge up 50 votes.

No doubt Susan Collins will express concern, John Kennedy will play the maverick for a hot second, Martha McSally will truly wrestle with her decision, Mitt Romney will give it serious consideration, and then they’ll all vote “yes.” Third verse, same as the first.

Trump’s Pick for Top Intelligence Post Overstated Parts of His Biography [New York Times]
Trump’s Pick for Intelligence Director Misrepresented Role in Anti-Terror Case [ABC News]
Ratcliffe Questioned Intelligence Community’s Role in Russia Investigation [CNN]
Trump’s Nominee to Lead America’s Intelligence Agencies Has an Unusually Thin Résumé [Washington Post]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

* An argument for ditching the billable hour for the sake of mental health. [Law.com]

* Eighth Circuit okays suppressing Native American votes in North Dakota. [Courthouse News Service]

* Masturbating on the D.C. Metro is legal? That actually doesn’t shock me. [Washington Examiner]

* Charlotte is probably America’s hottest legal market right now, which is a sentence no one expected ten years ago. [American Lawyer]

* Facebook beat back case claiming that the platform aided in Hamas attacks. Expect a lot of nonsensical blathering about Section 230 in Congress today. [Law360]

* California passes major legislation to protect sex workers. The bill’s sponsor is named Wiener which shouldn’t make me laugh as much as it is. [Rolling Stone]

* A no deal Brexit is a disaster for young lawyers. [Legal Cheek]

Introduction

The Minister of Environment, Tourism and Hospitality Industry, Hon Prisca Mupfumira, has been arrested on serious charges involving corruption and abuse of office.  When she appeared in court after being arrested her lawyer applied for bail but the Prosecutor-General issued a certificate forbidding the grant of bail for 21 days, so the magistrate accordingly refused it and remanded her in custody for 21 days.

In this Court Watch we shall not comment on whether Hon Mupfumira is guilty of the crimes alleged against her ‒ that will be for a court to decide in due course.  Nor shall we go into the question whether she should be released on bail – that should be a consideration for a court.

What this bulletin will do is to question the constitutionality of a law which gives the Prosecutor-General power to forbid the grant of bail to accused persons.

First though we should explain briefly what it means to be released on bail pending trial.

What is bail pending trial?

Anyone who is arrested must be brought before a court within 48 hours, but their trial can seldom take place so soon, so they have to be remanded ‒ that is to say, ordered to come back to court at a later date.  The court has to decide whether in the interim the person must be kept in custody or whether they can be released on bail, i.e. set free subject to conditions.  These conditions usually require the payment of a sum of money which will be forfeited if the person fails to obey the order to come back to court.

The Constitutional Right to Bail

The granting of bail is a very important part of our criminal procedure because it allows people who have been arrested to remain at liberty while waiting for their trials to begin.  It must be remembered that these people are presumed to be innocent until they have been found guilty by a court, and until then they should not suffer the indignity and hardship of detention in prison unless there are compelling reasons justifying their detention.  So important is the right to liberty that section 50(1)(d) the Constitution enshrines the right of arrested persons to bail in those very words:

“Any person who is arrested—

       ………….

(d)  must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”.

Section 32(3b) of the Criminal Procedure and Evidence Act

In the light of section 50(1)(d) of the Constitution, how could Hon Mupfumira be denied bail just at the order of the Prosecutor-General?  The answer lies in section 32(3b) of the Criminal Procedure and Evidence Act [which we shall call the CP&E Act].

In summary section 32(3b) states that where a person is brought before a judge or magistrate for remand after being arrested on reasonable suspicion of having committed a serious economic crime listed in the Ninth Schedule to the CP&E Act [the crimes for which Hon Mupfumira was arrested are in the list] and the Prosecutor-General issues a certificate stating:

• that the crime involves significant prejudice to the national interest,
• that it is necessary to detain the person for up to 21 days in order to investigate the crime properly, and
• that the police officer who arrested the person was of or above the rank of assistant inspector,

Then, if the judge or magistrate is satisfied there is a reasonable suspicion that the person committed the offence, the judge or magistrate must order the person’s detention for 21 days or for any shorter period specified by the Prosecutor-General.

Is Section 32(3b) Constitutional?

Section 50(1)(d) of the Constitution says that arrested people must be released unless there are compelling reasons justifying their continued detention.  The effect of section 32(3b) of the CP&E Act, in contrast, is that arrested people must be detained if the Prosecutor-General issues a certificate under the section.  Put like that the inconsistency between section 32(3b) and the Constitution is obvious.

If it is necessary to give further reasons why section 32(3b) is unconstitutional, here they are:

• In several cases judges of the High Court have said that the Constitution places an obligation on the prosecution to establish compelling reasons why an accused person should be denied bail.  What are compelling reasons?  Over many years courts have held that legitimate grounds for refusing bail are:

• if the accused person is likely to abscond, or
• interfere with witnesses or otherwise obstruct police investigations, or
• if they are likely to commit further crimes.

Any one of these grounds, if clearly established by the prosecution, could constitute a compelling reason for refusing bail.

• Under section 32(3b) of the CP&E Act, on the other hand, the Prosecutor-General need simply state that the crime with which the accused person is charged is a serious one involving significant prejudice to the national interest.  He does not have to establish, or even allege, that the accused will abscond, or interfere with witnesses, or commit further crimes.  The mere fact that a person is charged with a serious crime does not necessarily establish any of those factors and does not necessarily constitute a “compelling reason” for denying them bail.
• Section 50(1)(d) of the Constitution permits bail to be refused if “there are compelling reasons” for the refusal;  the existence of those reasons must be objectively established to the satisfaction of the court.  Under section 32(3b), in contrast, all the Prosecutor-General need do is allege that the accused person’s crimes involve significant national prejudice;  he does not have to prove or establish the prejudice.
• When presented with a certificate under section 32(3b) containing the necessary allegations, a court must refuse to grant the accused person bail.  It has no discretion in the matter.  The Prosecutor-General, therefore, has deprived the court of its essential judicial function vested in courts by section 162 of the Constitution.

Conclusion

Clearly section 32(3b) of the CP&E Act is inconsistent with section 50(1)(d) of the Constitution and is therefore void.

Laws which are inconsistent with the Constitution are void (i.e. invalid) by virtue of section 2 of the Constitution, and they are void even if the Constitutional Court has not declared them to be such ‒ this point was made by the Court in Veritas’ child marriage case [Mudzuru & Another v Minister of Justice & Others CCZ 12/2015 ‒ Link]

This conclusion will not be of much comfort or use to Hon Mupfumira.  Although magistrates have power under sections 85 and 175 of the Constitution to declare laws to be unconstitutional, they would be most reluctant to use that power when it came to declaring an Act of Parliament to be void.

Instead, Hon Mupfumira’s lawyers will have to apply to the High Court or even the Constitutional Court for the necessary order, and it is most unlikely that the court will give judgment in their application before her 21-day detention comes to an end.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

The army, which was illegally deployed, used live ammunition to disperse protests in the capital Harare, after delays in the release of the presidential election results by the Zimbabwe Electoral Commission.

“The tragedy of the post-election shootings is compounded by the fact that no one in the army suspected to be responsible for the bloodshed has been held to account for these brutal killings. This is despite the fact that the alleged perpetrators have been identified through the media and social media videos and pictures,” said Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa.

“If the Zimbabwean government wants to demonstrate that it is committed to human rights, it needs to ensure that the wheels of justice start turning faster than they have done over the past year.”

After the shooting on 1 August 2018, the Zimbabwe Republic Police confirmed that three people were killed when soldiers fired at demonstrators as they ran away. The number was later confirmed to be six. Some of the injured and dead were shot from the back.

The army also ordered journalists covering the protests to switch off their video recording equipment and cameras.

If there is violence in the context of a protest and the use of force is unavoidable to mitigate against the threat posed by participants or bystanders, law enforcement officials must use only minimum force necessary to contain the situation and must comply with the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

“Authorities must institute thorough, effective and impartial investigations into the killings of protesters, some of whom were killed while fleeing, with those found to have acted unlawfully brought to justice through fair trials,” said Muleya Mwananyanda.

“Zimbabwean authorities should under no circumstances allow further impunity and cover-ups for the killings. If Zimbabwe is to become a human rights respecting society, no one, including the army, should be untouchable for violating human rights.”

Post published in: Featured