BHUNU
J: All the six accused persons are
charged with treason. They are alleged to have conspired to unconstitutionally
overthrow the lawful government of Zimbabwe in contravention of s 20
of the Criminal Law (Codification and Reform Act [Cap 9:23].
In
the alternative they are alleged to have conspired to instigate members of the
Zimbabwe Armed forces to rebel and overthrow the constitutionally elected
government of Zimbabwe in contravention of s 20 of the Criminal Law
(Codification and Reform Act [Cap 9:23].
The
accused were arraigned before me and two assessors for trial on 4 of October
2010. At that trial they objected to being tried on the grounds that they had
been improperly brought before us for trial.
The
facts giving rise to their objection were to a large extent common cause. The
undisputed facts are that the accused persons were initially indicted to the
High Court for trial on the above charges by a magistrate on 4 June 2008 in terms
of s 65 as read with s 66 of the Criminal Procedure and Evidence Act [Cap 9:07].
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.
The
accused were however not tried within the prescribed time limit prompting
MUSAKWA J to dismiss the case and order their release from custody. The six
accused were however, not released from custody because they are facing other
charges for which they have been remanded in custody.
The
seventh co-accused that was not facing any other charges was duly released in
terms of MUSAKWA J's order. Since then he has not been located by the State.
Despite
having been released for want of prosecution the six accused were subsequently
re-indicted and remanded in custody in terms of s 65 as read with s 66 of the
CP&E Act [Cap 9:07].
Aggrieved
by their re-indictment and remand in custody the six accused appealed to this court
arguing that their re-indictment and subsequent remand in custody was unlawful.
They argued that in terms of s 321 as read with s 322 they were supposed to be
brought to court by way of summons instead of being re-indicted.
The
accused were subsequently placed before MUSAKWA J for trial. They however
objected to the commencement of the trial arguing that the trial should be held
in abeyance until the appeal had been determined. MUSAKWA J obliged and ordered
on 27 July 2010 that the trial be postponed until the pending appeal had been
determined
Despite
MUSAKWA J's order the matter was subsequently placed before me for trial on 4
October 2010. They again objected to the commencement of the trial pointing to
MUSAKWA J's order and raising the same arguments as previously presented before
the learned judge.
The
State countered that MUSAKWA J's order was premised or conditional upon the
accused effectively and expeditiously prosecuting their appeal.
On
13 October 2010 I dismissed the accused's objection and ordered that
the trial must proceed. They now apply for leave to appeal to the Supreme Court
against my order.
In summary my
reasons for dismissing the objection were as follows:
1.
That all the six accused persons had failed to expeditiously
and effectively prosecute their appeal within a reasonable time as was implicit
in MUSAKWA J's order.
2.
Section 65 as read with s 66 under which the magistrate
re-indicted the accused overrides any other section in the Act including ss 321
and 322
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 date.”
The
effect of that section in my view is to render any irregularity nugatory and of
no force or effect in relation to the bringing of the accused persons for trial
before this court. I interpreted that section to mean that, once an accused
person is brought before the High Court for trial the court is entitled to try
him regardless of any irregularities including failure to observe the
provisions of s 321 as read with s 322.
Whether
the accused should be tried whilst they are out of custody or in custody in
terms of s 321 as read with s 322 however, remains a live issue for
determination by the appeal court. The appeal court's determination does not in
my view affect this court's right to hear and determine the trial but only the
accused's freedom while on trial. In dismissing the accused's objection to
stand trial at this stage I was therefore not pre-empting the appeal court's
decision.
The
decision whether or not to try the accused in this court was not an issue
before the re-indicting magistrate. For that reason the issue is not pending
before the appeal court. That being the issue fell for determination by this
court.
3. By dismissing
the accused's objection I was also not overriding or reversing MUSAKWA J's
order. On the contrary I was only interpreting and giving effect to the learned
judge's order. I am sure that his Lordship did not mean that the accused could
perpetually avoid trial by simply filing a notice of appeal and then deliberately
refrain from prosecuting it within a reasonable time. By placing a time limit
of six months within which an accused person must be tried the law maker meant
that time was of the essence, for the adage “justice delayed is justice denied”
is apt. To make matters worse the defence has not bothered to give any
explanation for the delay nor have they indicated when they are going to
effectively prosecute their appeal Reliance
on the case of Matanhire v BP Shell Marketing Services (Pvt) 2005 (1) ZLR 140 was therefore
misplaced. That case in fact reinforces my position that this court may
interpret its own decisions to avoid any ambiguity leading to absurdity.
4. A perusal of
the record of proceedings tend to suggest that the defence is in the habit of
filing appeals and then sitting parking them in the appeal court without making
any follow ups. For instance on 18 November 2008 they were granted permission
to refer a constitutional issue to the Supreme Court. By 18 June nothing had
been done by way of a follow up to place the matter before the Supreme Court
for determination. This prompted Mr Tokwe
of the Attorney-General's Office to write in the following vain to the Criminal
Registrar:
“As you may
recall our office has made numerous follow ups on the record, to the extent
that, we have gone out of our way to
assist in the photocopying of some portions of the records despite
the fact that it is the accused who applied to have their case referred to the
Supreme Court. The Legal Practitioners of the accused seem not to be making a
chase up on this matter”
5. I accepted
the State's submission that it was dominus
litis in respect of the prosecution of the accused persons. I found that
allowing the accused to dictate the pace and time when they will stand trial by
taking their time in prosecuting their appeal to be absurd and wholly
inconsistent with this well established legal principle.
The determination which the accused intend to appeal against
was made on 21 July 2010. To date that is to say, three months later they have
neither requested that the record of proceedings be transcribed nor have they
filed their heads of argument in preparation for the appeal hearing in terms of
the rules of court.
- Counsel for the defence submitted that as far as they
are concerned MUSAKWA J is still seized with the matter because the case
was initially placed before him for trial. As far as he is concerned the
matter can only be tried by MUSAKWA J and no other judge. He therefore
accused the State of judge shopping. The implication being that I am more
likely to be biased against the accused than MUSAKWA J. Judges are however
sworn to do justice without fear or favour. I am a strong adherent to that
immutable rule of law and I believe the same applies to all my other
fellow judges without exception.
There is therefore no substance in counsel's submission that
the matter can only be heard by MUSAKWA J. I consider that to be idle talk
coming from senior counsel because it is an elementary rule of practice that no
judicial officer becomes seized with
a matter until the accused has pleaded to the charge before
him. This is an everyday common occurrence both in this court and in the lower
courts. On the contrary, it appears to me that the defence is trying to fasten
onto a judge whom they consider to have already accorded them what they believe
to be a favourable result.
The accused have been in custody since May 2007 any further
delay in bringing them to trial can only lead to a gross travesty of justice.
It is in the best interest of the due administration of justice that this long
outstanding matter be brought to finality.
From the foregoing, in my view it is highly unlikely and not in
the least probable that a different court might come to a different conclusion
thereby stalling the proceedings indefinitely with no prosecution of the appeal
in sight.
That being the case the application for leave to appeal cannot
succeed. It is accordingly ordered that
the application for leave to appeal to the Supreme Court be and is hereby dismissed.
Attorney – General's Office, legal practitioners for the State.
Warara &
Associates, legal practitioners for the defence.
