BHUNU
J: The six accused persons are charged
with treason as defined in s 20 of the Criminal Law (Codification and Reform
Act [Cap 9:23], alternatively contravening s 30 of the Criminal Law
(Codification and Reform Act [Cap 9:23]
that is to say, causing disaffection among the Police Force or Defence Force.
In
the main charge it is alleged that the six accused persons being citizens of Zimbabwe acting
in consort and common purpose unlawfully and intentionally conspired to
overthrow the Government of Zimbabwe during the period extending from June 2006
to 29 May 2007.
They
are alleged to have unlawfully conspired to instigate members of the Zimbabwe National
Army and Airforce of Zimbabwe to rebel and overthrow the constitutionally
elected Government of Zimbabwe.
In
the alternative but during the same period the accused are alleged to have
unlawfully induced or attempted to induce members of the Defence Forces of
Zimbabwe and Zimbabwe Republican Police to withhold their services, loyalty and
allegiance to the Government of Zimbabwe.
The
accused were indicted for trial at the High Court by a magistrate on 4 June 2008
in terms of s 66 of the Criminal Procedure and Evidence Act [Cap :907].
Section
160 (2) requires that a person committed to the High Court for trial must be
tried within a period of six months from the date of committal failure of which
his case must be dismissed. It reads:
“If a person
referred to in subs (1) is not brought to trial after the expiry of six months
from the date of his committal for trial his case shall be dismissed”.
The
proviso to that section however states that in computing the six months
duration any period during which such person is, through circumstances beyond
the control of the Attorney-General, not available to stand trial shall not
count as part of the six months period.
It
is common cause that the six accused persons were not tried within the
prescribed six month period prompting MUSAKWA J on 9 July 2010 to dismiss their
case and ordered their release from custody in terms of s 160 (2) of the Act
under case number, HH 142-10. The six accused were however, not released from
custody because they were facing other charges for which they were remanded in
custody. Their co accused one Rangarirai Mazivofa who was not facing any other
charges was unconditionally released in terms of MUSAKWA J's order. The accused
person has since not been located and he remains at large. I have since ordered
that his name be stuck out from the charge sheet.
. The six accused were subsequently re-indicted
by a magistrate for trial in the High Court in terms of s 65 as read with s 66
of the Act. Section 66 (2) requires the magistrate to commit the accused to
prison upon indictment for trial in the High Court until granted bail or
liberated according to due process of law. The indicting magistrate accordingly
committed the six accused persons to trial.
The
committal to prison pending trial did not go down well with the defence. They
protested that it was wrongful and unprocedural to commit the accused to prison
when their re-indictment had been occasioned by want of prosecution
Defence
counsel accordingly appealed to this court pointing to s 321 as read with s 322
which provides as follows:
“321 Liberation
of accused persons
Any person who is acquitted on any indictment,
summons or charge or whose case has been dismissed for want of prosecution
shall forthwith be discharged from custody.
322
Further proceedings against accused discharged for want of prosecution or whose
recognizance has expired
(1) A
person who—
(a) has been discharged in terms of
section three hundred and twenty-one for want of prosecution; or
(b) has been admitted to bail but not duly
brought to trial;
may be brought to trial in any competent court for
any offence for which he was formerly committed to prison or
admitted to bail at any time before the period of
prescription for the offence has run out:
Provided that, subject to subs (2), a person
referred to in—
(a) paragraph (a) or (b) of
this subsection shall not be liable to be committed to custody; or
(b) paragraph (b) of this subsection
shall not be liable to find further bail; in respect of proceedings for an
offence referred to in this subsection.
(2) A person referred to in subs (1) who
was committed for trial for an offence referred to in that subsection may be
prosecuted by the Attorney-General before the High Court for that offence, and
if that person, having been duly served with an indictment and notice of trial,
fails to appear at the time mentioned in such notice, the court may, on the
application of the Attorney-General, issue a warrant for his arrest and
detention in prison until he can be brought to trial or until he finds bail for
his appearance to stand his trial on the said indictment”.
I
take the view that the issue as to whether or not the magistrate was
correct in
committing the accused to prison upon re-indictment is within the domain of the
appeal court. The magistrate's order however remains lawful and binding among
the parties until such time it has been upset by a competent court of competent
jurisdiction
This
court's mandate is simply to try the six accused persons who have been brought
before it according to law. It has however, been vigorously argued that the court
cannot proceed to try the accused because their indictment was irregular and to
that extent unlawful for want of compliance with the provisions of s 321 as
read with s 322 of the Act.
Section
65 (i) (v) of the Act provides that no irregularity in the
indictment
process shall vitiate the trial proceedings before this court. It reads:
“(v) No irregularity or defect in –
(a)
any proceedings referred to in s 66, or
(b)
any other matter relating to the bringing of an accused
person before the High Court, shall affect the validity of the trial, but the court
may, on the application of the prosecutor or the accused, adjourn the trial to
some future day”.
Apparently
acting in terms of the above legal provisions MUSAKWA J ordered on 27 July 2010
that the trial be postponed sine die pending the appeal lodged by the
accused persons against the decision to re-indict them.
With
respect it appears to me that MUSAKWA J may have misunderstood the thrust of
the accused's appeal. My understanding is that the accused are not questioning
the State's right to re-indict them but their committal to prison upon re-indictment.
That observation is however beside the point. The cardinal issue for determination
is whether or not I am bound by my brother Judge MUSAKWA'S determination that the trial be postponed
pending the outcome of the appeal lodged by the accused.
It
is clear to me that MUSAKWA J's order was premised on the understanding that an
appeal had been filed with this court and indeed that was my understanding of
the submission from the defence. I was however surprised when State counsel
submitted without any contradiction that there is in fact no pending appeal as
alleged by the defence. All what has happened is that the accused have filed a
notice of appeal. The order which they intend to appeal against was made on 21
July 2010. It is my considered view that when MUSAKWA J made his order
postponing the trial until the outcome of the appeal it was implicit in the
order that the accused had to prosecute their appeal within a reasonable time.
This is because time is of the essence otherwise the six month period within
which the accused must be brought to trial will again expire thereby again
necessitating the dismissal of the accused and consequently discharge on a
technicality rather than on the merits.
I
am in total agreement with the State counsel that it is wholly undesirable that
cases of this nature be determined on technicalities. I am sure that had
MUSAKWA J known that by now the accused will not have taken effective steps to
prosecute their appeal he would not have suspended the trial pending an appeal
which is not being effectively prosecuted. I am therefore persuaded that
MUSAKWA J's order has since overtaken by events in that the accused have failed
to expeditiously prosecute their appeal within a reasonable time.
Bearing
in mind that the accused are in prison not only because of this matter but also
on account of a different matter altogether I can perceive no injustice or
prejudice if they are tried whilst coming from prison.
As
I have already stated this court's mandate is merely to try the accused regardless
of where they are coming from. Since I have already ruled that the accused's re-indictment
was not vitiated by any perceived procedural irregularities or defects real or
imagined, I accordingly rule that the six accused persons are properly before
this court for trial. It is in the interest of public policy and everyone
concerned that this matter be brought to finality on the merits without any
undue delay.
In
the result it is accordingly ordered that counsel's objection to the
commencement of the trial be and is hereby dismissed.
Attorney – General's Office, legal practitioners for the State
Warara &
Associates, legal practitioners for the defence
