It was ‘preposterous’ to expect that appellants, sentenced to a jail term, would prosecute their appeal with vigour and hand themselves in should the appeal be dismissed. That’s the view of Harare high court judge, Pisirayi Kwenda, who was hearing a bail application brought by Petronella Kagonye, Zimbabwe’s former minister for public service, labour and social welfare.
She has been convicted and sentenced by the anti-corruption court for theft and now wanted bail pending her appeal.
Kagonye’s case concerned 20 laptops that have disappeared without trace. She had written a couple of times to the minister responsible for information, communications and technology, asking for computers that she could donate. The first request was for enough computers to give ‘10 or 15’ machines to each of the 28 schools she listed. Six days later, she wrote again, this time asking for ‘another donation of 20 laptops for distribution to the disadvantaged in her constituency.’
Responding to her requests, the minister of information wrote to the board of trustees of the Universal Services Fund (USF), recommending the donation. (The USF is a part of the Postal and Telecommunication Regulatory Authority of Zimbabwe (POTRAZ), responsible for financing and running the government’s e-learning project.)
When the computers became available, Kagonye wrote a letter authorising POTRAZ to give her the computers via her brother. When he picked them up, he signed a handover document that included the serial numbers of the laptops. On her behalf he signed agreement that the equipment would be held in trust, handed over to the ‘intended beneficiaries’ and that a list of the beneficiaries, with their contact details, would be given to POTRAZ within 30 days.
But Kagonye did not account for the laptops in terms of this undertaking: the laptops were not given to the schools and she did not submit the details of the beneficiaries as required.
She denied theft of these laptops, saying she was unaware she had to account for them because her brother signed the document. She said that in one of her motivating letters she had referred to ‘computers’ and in the other, ‘laptops’, and she thought they were different things. To her way of thinking, she said, the computers would go to schools and the laptops would go to the ‘underprivileged’ in her constituency.
The court explained what she said had had happened – and it is a pretty alarming statement in itself, speaking of rampant graft associated with elections – ‘the laptops were distributed by her campaign manager during campaigns’.
Only three were ever traced. The rest remain undocumented.
Convicted of theft of trust property, Kagonye was sentenced to a jail term of 36 months. A year was suspended for five years on the usual conditions, while a further eight months were suspended on condition she paid USD 10 000 restitution for the missing equipment.
The former minister has noted an appeal against both conviction and sentence, but in the meantime wants to be released on bail. And it was this question – whether bail should be granted – that Judge Kwenda was considering.
He weighed in on a subject that has been the cause of some concern for judges in Zimbabwe: what happens to convicted people who apply for bail pending an appeal, but fail to hand themselves over if their appeal fails?
Deciding a previous case involving bail pending appeal, Judge Kwenda said the system had no audit mechanism to ensure those out on bail, who lose their appeals, were accounted for, because the law did not expressly say what should happen after a failed appeal against conviction and sentence.
In that case, also involving a high-ranking official convicted of corruption, the accused simply sat at home and noted a fresh appeal after losing his first attempt.
The judge said at the time of the earlier case, that because of a loophole in the law, it was common to find people convicted of crimes being granted bail pending appeal, only to abandon their appeals once they were out of prison. Scores of such convicts were walking free, while police struggled to find them, serve them with warrants and take them to court for an order that their sentence should begin.
‘You do not get any person handing himself or herself in after losing an appeal,’ said the judge.
In the Kagonye case, however, Judge Kwenda said that there were provisions related to the problem that had been ‘sadly overlooked’ by the courts, legal practitioners and unrepresented accused persons. He quoted statistics showing that ‘in the majority of cases’, convicted persons ‘disappear’ as soon as they are granted bail pending appeal.
It rarely happened that a convicted person, granted bail pending appeal, would ‘take the risk’ of going ahead with the appeal. Judge Kwenda added, ‘Actually the expectation that the appellant who has been sentenced to imprisonment will prosecute his or her appeal with vigour and hand himself or herself in when the appeal is dismissed, is preposterous.’
Before sentence, accused persons ‘are not entirely trusted’ and had to appear in person at the trial for the court to monitor their movement. But, ‘in a surprise twist in legislation’, after conviction, ‘the same person is deemed worthy of trust and is allowed to stay at home for days on end, to prosecute an appeal at his own pace, and hand himself or herself in when the appeal fails.’
As to the important question of Kagonye’s prospects of success on appeal, the judge said he was not persuaded. The narrow question on which her appeal turned was whether her defence was correctly rejected. ‘The chances are that the appeal court will find that [whether her defence was correctly rejected or not], [Kagonye] had the implied duty to deal with the laptops in a manner that ensured the laptops reached the intended beneficiaries’ and to ensure that the identities of the beneficiaries were known and recorded.
On the question of sentence, he said it was also unlikely that an appeal court would interfere with the trial court’s decision to send someone to prison who, ‘at the time of committing the crime, was an honourable member of parliament, who abused trust property destined for the less privileged’. Kagonye had not convinced him of any ‘misdirection’ in assessing sentence or that the sentence passed was disturbingly inappropriate or so severe as to induce shock.
He thus concluded that her prospects on appeal were ‘fanciful’. Moreover, she had not made a firm undertaking to abide by her sentence if she lost the appeal. The appeal court was ready and available to hear the matter without delay, and as the issue for determination was very narrow, judgment was not likely to be delayed.
He therefore dismissed her application for bail, meaning that she would start to serve her sentence immediately.