BHUNU J: The accused persons stand
charged with murder as defined in s 47 of the Criminal Law (Codification and
Reform) Act [Cap. 9:23]. In the alternative or concurrently they are
charged with public violence as defined in s 36 of the Act. This seemingly
unending marathon trial has now entered the home stretch to the relief of
everyone concerned following the closure of the state case.
The Defence has however, now applied for the discharge of
all the 29 accused persons at the closure of the state case in terms of s 198
(3) of Criminal Procedure and Evidence Act [Cap. 9:07]. That section provides
that if at the closure of the state case the Court considers that there is no
evidence that the accused committed the offence charged or any other offence of
which he might be convicted thereon it shall return a verdict of not
guilty.
The section is couched in peremptory terms. In other words, once the Court has
made a finding to the effect that there is no evidence that the accused
committed the offence charged or any other offence arising from that charge it
has no option but to find the accused not guilty and discharged.
For that application to succeed, the onus lies squarely on
the defence to satisfy the Court on a balance of probabilities that there is no
evidence that each accused committed any of the offences charged or any other
offence arising from the offences charged.
The 29 accused persons are alleged to have killed a Police
Officer Inspector Petros Mutedza at Glen View 3 Shopping Centre Shopping centre
on 29 May 2011 in the course of politically motivated mob violence. The facts
leading to the death of the deceased are fairly simple and straight forward and
easy to determine without any problem.
The accused persons are alleged to be members of the
Movement for Democratic Change Tsvangirai (MDC-T). It is common cause that some
of the accused persons are in fact members of that party. There is a dispute as
to whether all the accused persons are members of that political party. The
determination of the case does not however, hinge on whether or not one is a
member of that political party. Each accused person's liability is based on
whether or not he participated in the commission of the offence.
Counsel for the defence was at pains to raise preliminary
points aimed at amending the state's summary of evidence on account that it had
failed to lead evidence tending to prove certain factual statements made in
that summary. Relying on the cases of S v Bhaiwa 1988 (1) ZLR 412
(SC) at p. 417A-B andS vNicolle 1991 (1) 211 (SC) at
p.216 A-Bshe forcefully argued that such unproven statements are prejudicial to
the defendants and as such should be struck out from the summary of the State
case.
In theBhaiwa case McNally JA held that it is
improper and highly prejudicial to an accused person for the prosecutor to
leave damning statements in the outline of the State case when the prosecutor
knows he is not going to call the evidence of the witnesses in question.
In my view the catch phrase is that the prosecutor must not
deliberately put or leave prejudicial statements in his Summary of the State
case with the full knowledge that he does not intend to call evidence in proof
thereof.
In this case the prosecutor did call evidence to the effect
that the bulk of the people who eventually killed the deceased were members of
the MDC-T party celebrating their party's t-shirt visibility day. They could be
identified by their regalia and the slogans which they were chanting. Some of
the accused persons were personally known to some police witnesses as they
frequented the local police station. Some t-shirts though not produced in court
on account of having been misplaced were allegedly recovered during
investigations.
The state case hinges on the doctrine of common purpose,
thus anyone who is proven to have participated or made it his common purpose to
attack the deceased rendered himself liable for his murder regardless of his
political affiliation or the clothes he was wearing at the material time. For
that reason, it is not necessary for the State to prove that each accused person
is a member of the MDC-T party and was wearing party regalia when the offence
was allegedly committed.
In my view the dictum in S vBhaiwa, suprawas
not meant to strike out each and every factual statement that the State fails
to prove in the State summary. The object was merely to guard against
deliberately planting prejudicial statements therein without the intention of
proving them. In most trials the state routinely fails to prove certain
averments made in its summary of the State case. It would be laborious for the
Court to make a follow up striking out each and every such statement.
The more convenient procedure in the circumstances of this
case, was properly articulated by the learned Chief Justice in the well known
case of Attorney General vBennett 2011 (1) ZLR 396 (S).In
that case at the close of the State Case the prosecution had not led some of
the critical evidence it alleged in the State outline that it would lead. Some
witnesses departed from the State outline in some material respects. The
learned Chief Justice concluded that none existent or evidence of no probative
value may simply be held worthless and of no value to the state case. I propose
to adopt that procedure in this case.
At this juncture the Court is not required to pronounce anyone
guilty of any of the offences charged. All what is required of it is to have an
over view of the evidence before it and then determine whether the state has
established a prima facie case in respect of each accused person. The
test is not whether the state has proved its case beyond reasonable doubt but
whether a reasonable Court acting carefully might convict on the basis of the
evidence before it. If however the Court is of the view that the State has
failed to establish a prima facie case against the accused at the
close of the State case it is obliged to acquit and discharge the accused
person. See Attorney General v Bennet (supra).
It is however, not in dispute that a group of some MDC-T
members gathered at Glenview 4 Shopping Centre on 29 May 2011 to celebrate what
was termed the 'MDC-T' T- Shirt Visibility day.
It is common cause that security officials considered the
gathering to be unlawful for want of compliance with security regulations and
statutes. As a result the deceased was tasked to lead a troop of police
officers to go and disperse the gathering.
The deceased teamed up with Assistant Inspector Nyararai,
Sergeant Chikwanda, Sergeant Major Mutsigwa, Constable Solomon Mushaninga,
Constables Magonangona, Magutarima and Dehwe. The team constituted the mobile
reaction group on a mission to disperse the reported illegal gathering at
Glenview 4 Shopping centre. Enroot to that place they passed through Glenview
Police Station where they were accompanied by Inspector Nyararai.
At Glenview 4 Shopping centre they confronted and ordered
the group of alleged MDC-T activists that was feasting, drinking and roasting
meat to disperse. They met with no resistance at that stage. The activists in
fact successfully negotiated for permission to finish roasting their meet
before dispersing.
The group later relocated to Glenview 3 shopping centre.
Upon learning that the group had relocated to Glen view 3 Shopping Centre the
police followed in a bid to disperse them again. It is at this place that the
police met with stiff violent resistance resulting in the stoning of the
deceased to death.
As I have already stated elsewhere in this judgment, the
state case is based on the common law doctrine of common purpose or conspiracy
to commit a crime which has now been codified under s 188 of the Criminal Law
{Codification and Reform} Act [Cap 9:23] which provides that:
“(1) Any person who enters
into an agreement with one or more other persons for the commission of a crime
in terms of this code or any other enactment-
a)
Intending by that agreement to bring about the commission of the crime; or
b)
Realising that there is real risk or possibility that the agreement may bring
about the commission of a crime;
Shall be guilty of
conspiracy-
(2) For an
agreement to constitute conspiracy –
a)
It shall not be necessary for the parties –
(i)
To agree upon the time, manner and circumstances in which the crime of the
conspiracy is to be committed; or to know the identity of every other party to
the conspiracy;
b) It shall be immaterial that
(i)
The crime which is the subject of the conspiracy is to be committed
by one both or all of the parties to the agreement; or
(ii)
One or more of the parties to the
conspiracy, other than the
accused, did not know that the subject matter of the agreement was
the commission of a crime.”
To found liability on the basis of common purpose,
conspiracy or collaboration to commit a crime Gardiner and Landsdown South
African Criminal Law and Procedure Vol. 1. 6th edition 1957 at p. 145
states that:
“If two or more persons form a common intention to
prosecute an unlawful purpose and to assist each other therein, then each one
of them is a party to, and liable to punishment for, every act committed by the
other or others in the prosecution of that purpose which was or must have been
known to be a probable consequence of such prosecution...
Common purpose is a term which usually implies the presence
of the mental element of intention or design. But as has appeared on p.144
supra, two or more persons may be so connected with such an offence, e.g. in
culpable homicide so associated by common purpose to do the unlawful act or
acts which caused the death as to become jointly and severally liable for the
unlawful result, without the contemplation of death or the recklessness which
would be necessary to constitute murder – see R v Geere & others, 1952 (2)
SA. 319 (A.D.). It is not essential that the same intent or absence of it
should be imputed to each of the persons associated in a common purpose: thus
one may be convicted of murder and another of culpable homicide – R v Hercules,
1954 (3) S.A. 826 (A.D.)..
In several well known cases it has been held sufficient for
the prosecution, seeking to establish knowledge on the part of the accused to
show that the late, as a reasonable man ought to have foreseen the consequences
in question.”
The long and short of it all is that anyone who is shown to
have associated himself or herself at the material time with the group that
eventually killed the deceased in the process of resisting police orders to
disperse has a case to answer.
The State has led evidence that tends to link some of the
accused persons to the commission of the crime. Some were identified by State
witnesses actively attacking the deceased and his companions while others were
encouraging, aiding and abating the commission of the crime. One was observed
by his victim throwing a stool at him in a lit bar. Some accused persons well
known to police details under attack were observed and heard to shout
obscenities, “matatya ngaauraiwe” that is to say frogs must be killed
in furtherance of the common purpose to resist police orders to disperse.
It is therefore necessary to look at the defence of each
accused person to see if he or she has a case to answer.
1.
Accused one. Tungamirai Madzokere.
This accused person is the local
councillor. He admits having attended the t-shirt visibility day celebrations
on 29 May 2O11 at Glenview 4 Shopping Centre. He voluntarily contributed $10.00
to buy meat for the braai or barbecue. He accompanied the group to Glenview 3
latter in the day. He was present at Glenview 3 Shopping Centre when the police
arrived leading to the commotion that led to the deceased's Death.
He however denies having
participated in the confrontation that led to the deceased's death. His defence
is that at the time of the commotion he was drinking beer in the council park
with Gladys, Nohlahla and Yvonne Musarurwa among vendors, while Nohlahla's shoe
was being repaired by a cobbler.
Inspector Spencer Nyararai
stationed at Glenview Police station had prior knowledge of the accused as a
frequent visitor to the police station. It was his testimony that he observed
the accused participating in the commission of the offence on the day in
question. He saw him among people who were in front of Munyarari bar chanting
slogans and shouting “Uraya datya” kill the frog. His evidence was amply
corroborated by other state witnesses including Constable Solomon Mushaninga.
It is needless to say that the
accused's defence also places him squarely at the scene of the crime. It again
establishes an association with the group that eventually killed the deceased.
His admitted presence and association with the marauding violent crowd
undoubtedly establishes a prima facie case for the accused to answer.
I accordingly come to the
conclusion that accused one Tungamirai Madzokere has a case to answer
concerning the deceased's death.
2. Accused two.
Yvonne Musarurwa.
Her defence is that she actively
participated in the t-shirt visibility day celebrations organised by the
Provincial Youth committee on the day in question, that is to say 29 May 2011.
At the time of the commotion she was drinking beer in the Council Park in the
company of The 1st accused, Nohlahla and Gladys while Nohlahla's
shoe was being repaired by a cobbler at the entrance to Munyarari bar where the
police were eventually attacked leading to the deceased's death.
The State led evidence to the
effect that she was observed by eye witnesses including Constable Mushaninga
and Inspector Spencer Nyararai actively participating in the crime chanting
party slogans and encouraging members of her group to attack the police.
Inspector Nyararai knew her very well prior to the commission of the offence.
This accused person's presence
at the scene of the crime and close association with the marauding group of
youths that eventually resisted and attacked the police lead inexorably to the
conclusion that the state has established a prima facie case against
her.
The accused Yvonne Musarurwa has
a case to answer in respect of the deceased's death. She is accordingly placed
on her defence.
3.
Accused three. Rebecca Mafukeni.
On 14 August 2013 this Court
received the sad news from state counsel that accused three Rebecca Mafukeni is
now late. It is trite that death terminates criminal proceedings against any
accused person.
The Court shall therefore
refrain from pronouncing its verdict on the application for acquittal at the
close of the state case.
4.
Accused four. Last Mayengehama.
This accused's defence is that
commonly known as an alibi. He flatly denies having been anywhere near
the scene of the crime at the material time. He claims that he was at the City
Sports Centre attending a church service of the United Family International
Church led by prophet Emmanuel Makandiwa. The service was conducted by Pastor
Kufa as prophet Makandiwa was not present. He may call at least four people who
accompanied him to church on that day to confirm his defence.
There are however state eye
witnesses who claim to have seen the accused at the scene of the crime actively
participating in the commission of the crime. Constable Solomon Mushaninga who
was in the company of the deceased when he met his death gave a graphic
description of the accused's peculiar features as fitting the description of
one of his attackers who threw a stool at him inside Munyarari bar. He
identified the accused by his dark complexion, medium built and swollen
forehead. That description fits the accused.
The evidence led by the State
tends to link the accused person to the commission of the crime notwithstanding
his alibi. His liability falls to be determined on the credibility of
the evidence one way or the other. Thus the State case establishes a prima
facie case against the accused. It is accordingly ordered that the accused
last Mayengehama be and is hereby placed on his defence.
5.
Accused five. Lazarus Mayengehama
This accused person is a brother
to the 4th accused Last Mayengehama. His defence is that at the
material time he was employed in Botswana but he was back home on a visit and
residing at house number 4712 - 58th Crescent Glenview. He denies
being a politician or political activist. He states in his defence outline that
on the day in question he remained at home while his wife and others went to
church. His wife found him at home upon her return from church around lunch
time.
After lunch he was joined by
Micah Muzambi and Willard Magaya in drinking beer at home. His relatives who
had gone to church in the morning started to trickle home round about this
time.
He only learnt of the
disturbances at the shops from his wife who had been to the shops around 4 pm.
He was surprised to be arrested during a night police raid. At 44 years of age
he is no longer a youth and as such he could not have been participating in the
said MDC-T youths activities.
He intends to call his drinking
mates to confirm his alibi but is yet to confirm their availability.
Despite his spirited denial
Inspector Nyararai identified him as one of the persons he saw
participating in the commission of the crime. It was his testimony that he knew
the accused prior to the commission of the offence because he had previously
seen him at Glenview 4 earlier that day.
Unless Inspector Nyararai is
mistaken or deliberately telling a lie there is reason to place the accused on
his defence so as to test the veracity of his defence of an alibi. The
accused's guilty or otherwise falls to be determined on the credibility of
evidence when everything has been said and done.
It is accordingly ordered that
the accused Lazarus Mayengehama be and is hereby placed on his defence.
6.
Accused six. Gabriel Shumba Banda.
This accused person's defence is
that he was employed as a pool table attendant at Munyarari bar. At the time of
the commotion which led to the deceased's death he was inside the bar attending
to his duties. He witnessed youths clad in MDC-T regalia entering the bar and
proceeding to the back of the building. Shortly thereafter he observed the
police entering the bar armed in riot gear. He frantically locked up and fled
together with others at the first sign of trouble.
The police were rather naive in
their investigations in that they failed to check whether the accused was in
fact employed in that capacity at Munyarari bar. The state's failure to rebut
the accused's defence in that respect can only lead to the inescapable
conclusion that the accused was at Munyarari bar for an innocent purpose.
I have carefully gone through
the evidence against this accused person. Apart from his presence at the scene
of crime, there is nothing to show that he participated or conspired in any way
with the deceased's attackers. He has a perfectly innocent explanation for his
presence at the scene of crime when the deceased met his death.
The operation of his defence as
appears in his defence outline has not been shaken in anyway. For that reason,
nothing is to be gained by placing him on his defence. The State having failed
to establish any evidence upon which a reasonable court acting carefully might
convict, this court has no option apart from absolving him from any wrong
doing.
The accused is accordingly found not guilty and
acquitted.
7.
Accused seven. Phenias Nhatarikwa.
This accused person's defence is
that he is employed by the MDC-T party as a driver. On the day in question he
was on duty attending to the T-Shirt Visibility day at Glenview 3 Shopping
Centre. At or about the time of the disturbances he was at the scene of crime
attending to his duties with an MDC-T pickup truck. He had been called by one
of the youths leaders to ferry utensils, and empty bottles.
As he arrived at Glenview 3
Shopping Centre he noticed police in riot gear arriving in a police vehicle and
he decided to drive off. As he was driving off he was stopped by accused two,
Yvonne Musarurwa in the company of accused one Tungamirai Madzokere and others
who appeared to be fleeing from the commotion. He then drove off to avoid being
caught in the crossfire.
The State led evidence to the
effect that a truck was seen being used as a gate-away vehicle from the scene
of the murder. The accused's presence at the scene with a truck and his
association with the group of persons responsible for the death of the deceased
renders him a prime suspect in the commission of the offence. He needs to be
questioned on the extent and nature of his participation and involvement in
furtherance of the group's cause. Is it likely that he could have failed to
render assistance to his colleagues who were fleeing from the scene after they
had stopped him? That can only be explained by the accused and his co-accused
when he takes to the witness stand. The accused having associated himself with
the group that allegedly killed the deceased, the onus is on him to satisfy
this Court that his association with the group was innocent. Because of his
admitted involvement in the group's activities at the scene of crime, he is
also duty bound to satisfy this Court that he dissociated himself from the
groups cause to resist police orders.
For those reasons this Court is
satisfied that the accused has a case to answer. It is accordingly ordered that
accused seven Pheneas Nhatarikwa be and is hereby placed on his defence.
8.
Accused eight. Stefani Takaidzwa.
This accused person's defence is
that he is a committee member for Harare Province in the MDC-T party. On the day
in question that is to say, 29 May 2011 he spent the entire day at home save
for the brief moment when he visited Kuwadzana Shopping Centre in the company
of his wife around 1400 hours.
A perusal of the record of
proceedings shows that the State has failed to lead any credible evidence
tending to link the accused to the commission of the offence. That being the
case, he is accordingly found not guilty and acquitted at the close of the
State case.
9.
Accused nine. Stanford Mangwiro
This accused's defence is that
of an alibi. He denied being at the scene of crime. In his defence
outline he states that at the time of the commission of the offence at
Munyarari bar in Glenview 3 he was in Mbare with his girlfriend Tarirai Shelter
Tugwete and one Elvis.
He only got back home in
Budiriro around 1800 hours after the offence had already been committed.
The State came nowhere near
rebutting his alibi. It alleged without proof that the accused was
seen participating in attacking the police. The Investigating Officer Chief
Inspector Ntini sought to rely solely on the inadmissible evidence of police
informers whom he was not prepared to disclose or call to give evidence in
Court.
Apart from the inadmissible
hearsay evidence of police informers there was no credible evidence linking
this accused person to the commission of the offence. That being the case the
Court has no option but to hold that the State has failed to establish a prima
facie case against the accused at the close of its case.
The Accused Stanford Mangwiro is
accordingly found not guilty and acquitted at the close of the State case.
10. Accused
ten. Cynthia Fungai Manjoro.
This accused person is a young Lady of 26 years of age. She
was arrested on allegations that a motor vehicle registered in her name was
seen at the scene of crime aiding and abetting the commission of the crime
charged.
It however, emerged at the trial that in fact the accused
was nowhere near the scene of crime at the material time. Her brother called as
a State witness confirmed her defence that she was at Church while her motor
vehicle was in the possession of her boyfriend one Darlington Madzonga when the
offence was allegedly committed.
Darlington has since fled and has gone into hiding as a
fugitive from justice. Upon discovering that Darlington had fled from justice
the police decided to arrest and charge the accused using her as bait to
capture her cowardly boyfriend. A real man does not flee from danger leaving
his woman in trouble that he has created.
The police's conduct in this respect was however
unprofessional and smacks of high handedness. The State compounded the police's
errors by placing this accused person on remand with the full knowledge that
she had no case to answer. For that reason it will be a gross travesty of
justice for her trial to proceed beyond the closure of the State case.
It is accordingly ordered that the accused Cynthia Fungai
Manjoro be and is hereby found not guilty and acquitted at the closure of the
State case.
I now turn to deal with the cases of the following accused
persons as the evidence against them is similar in nature.
11. Accused
eleven. Stanford Maengehama
12. Accused
twelve. Linda Musiyamhanje.
13. Accused
thirteen. Tafadzwa Billiat.
14. Accused
fourteen. Simon Mudimu.
15. Accused
fifteen. Zwelibanze Dube
16. Accused
sixteen. Simon Mapanzure.
The common denominator among the 6 accused persons
is that they were all alleged to have been observed participating in the
commission of the offence by police informers who were not called to testify
against any of the accused persons. Their evidence as presented through the
investigating officer is hearsay and to that extent inadmissible and of no
benefit to the State case.
All the accused persons deny any involvement in the
commission of the offence. Each one of them relies on the defence of an alibi. In each case the
State has failed to rebut the operation of that defence.
In any case in the absence of any evidence linking
the accused to the commission of the offence the duty to prove their respective
defences does not arise. In the circumstances of this case the Court cannot but
find that the State has failed to establish a prima facie case against
each of the 6 accused persons.
It is accordingly ordered that the 6 accused persons
be and are hereby found not guilty and acquitted at the closure of the State
case.
17. Accused Seventeen.
Edwin Muingiri.
This accused person's defence is
that on the day in question, that is to say 29 May 2011 he was selling airtime
at Glen view 4 Shopping Centre. He mixed and mingled with the MDC youths who
were clad in their party regalia to show that the party was still active in the
area. They were merry making, drinking and roasting meat.
When the youths dispersed around
1400 hours he remained behind gathering empty bottles and dishes. Later on he
decided to follow the youths to Glenview 3 to recover some empty bottles from
the youths. On his way to Glenview he met someone who advised him that there
were police in riot gear at Glenview 3. He then decided to abort his journey to
Glenview 3 Shopping Centre. He therefore denies having been at the scene of
crime at the time of the deceased's death.
It is common cause that the
police ordered the group of youths celebrating the MDC-T t-shirt visibility day
at Glenview 4 to disperse on account that the gathering was unlawful as it had
not been sanctioned by the police. It follows that the group's relocation to
Glenview 3 Shopping Centre was an act of defiance.
On the facts of this case it can
safely be inferred that the accused who was mixing and mingling with the
defiant youths was well aware of the police order to disperse. His act in
deciding to follow the youths to Glenview 3 after they had been ordered to
disperse by the police was equally an act of defiance. He therefore consciously
made it his common purpose to resist police orders, an act which eventually led
to the deceased's death.
The accused having closely
associated himself with the cause of the group being blamed for the deceased's
death, he bears the onus of establishing that there was no collusion on his
part and that he timely dissociated himself from the common design to resist
police orders to disperse. For that reason the Court finds that the accused has
a case to answer.
It is accordingly ordered that
the accused Edwin Muingiri be and is hereby placed on his defence.
It is convenient to deal with the following three accused
persons at once as the evidence against them has a lot in common.
18
Accused eighteen. Augustine Tengenyika
19
Accused nineteen. Francis Vambai.
20
Accused twenty. Nyamadzawo Gapara
The three accused persons are
members of the MDC-T party. They were arrested on 5 June 2011 on their way to
an MDC-T political rally. The kombi motor vehicle in which they were travelling
was diverted by ZANU PF youths who handed them over the police. They are
alleged to have attacked and chased after the police at Glenview 3 Shopping
Centre on 29 May 2011 resulting in the deceased's death.
They denied that they were
anywhere near the crime scene on the day in question. They gave their defences
of an alibi right from the onset. They had spent the whole day
assisting a builder one Brightmore Chidziva to build a house in Budiriro 4.
While building the house, they frequented Budiriro shopping Centre to buy beer.
They knocked off around 5:30 hours.
The investigating officer Chief
Inspector Ntini initially denied in his evidence in chief that the three
accused persons had advanced the defence of an upon their arrest. When
confronted with irrefutable evidence that they had in fact raised the defence
in their warned and cautioned statements, he made an about turn and said that
he had received verbal reports from his officers that the alibi had been
checked and it could not be confirmed.
Apart from the police's failure
to deal effectively with the accused's defence of an alibi, the state
failed to lead any credible evidence linking the accused to the commission of
the offence. The State sought to rely on the inadmissible hearsay evidence of
police informers who were not called to give evidence in Court. There being no
credible evidence led by the State against the accused at the closure of its
case the Court can only come to the conclusion that it has failed to establish
a prima facie case against the accused person according to law. The
three accused persons are accordingly found not guilty and discharged at the
close of the state case.
21. Accused
twenty-one. Oddrey Sydney Chirombe.
This accused person is the MDC-T
councillor for ward 33 Budiriro. Like the other accused persons before him the
state sought to rely on the inadmissible hearsay evidence of police informers
who were not called to testify against him. The accused denied the charge
saying that he spent the day at home until 1400 hours when he left for a beer
drink at Micky Job Bar in Budiriro 3. He intends to call his eldest daughter to
corroborate his evidence in this respect.
In the absence of any other
admissible evidence linking the accused to the commission of the offence, it
cannot be said that the state has established a prima facie case
against the accused at the closure of the State case. For that reason it
is accordingly ordered that the accused Oddrey Sydney Chirombe be and is hereby
found not guilty and acquitted at the closure of the State case.
22. Accused
twenty-two. Jephias Moyo and
23. Accused
twenty-three. Abina Rutsito.
Both accused persons are
employees of the MDC-T party. The 22nd accused Jephias is employed
as a shop manager in the party's regalia shop whereas the 23rd
accused Abina Rutsito is employed in the security department of the party.
There defence is that they both
live very close to Glenview 4 Shopping Centre. They normally drink at that
place. On the day in question they were at Glenview 4 Shopping Centre drinking
beer as usual. When they got to their usual drinking place they noticed MDC-T
youths. Some of them were clad in MDC-T t-shirts. They enquired and were
advised that the youths were celebrating their t-shirt visibility day to
demonstrate the existence of their party.
Despite being employees of the
party they kept to themselves and did not join in the celebrations. They did
not relocate to Glen view 3 with the youths when they were dispersed by the
police. They left Glenview Shopping Centre late that day without having set
foot at Glenview 3 Shopping Centre where the deceased was killed.
Apart from the discredited
evidence of police informers who were not called as witnesses against both
accused persons the State had no other credible evidence linking them to the
commission of the offence. Both accused Jephias Moyo and Abina Rutsito are
accordingly found not guilty and acquitted at the closure of the State
case.
The same line of reasoning applies to the following accused
persons;
24. Accused
twenty-four. Tendai Maxwell Chinyama.
25. Accused
twenty-five. Memory Ncube.
26. Accused
twenty-six. Kerina Gweshe Dhewa.
27. Accused
twenty-seven. Solomon Madzore and
28. Accused
twenty-eight. Lovemore Taruvinga Magaya.
The five accused gave
various alibis as their respective defences. In the case of accused 27 Solomon
Madzore his alibi was actually confirmed by the police. Like the 10th
accused Cynthea Manjoro, he suffered the same misfortune of being arrested and
incarcerated despite the confirmation of his alibi by the police.
Apart from the
discredited evidence of police informers who were not called as State
witnesses, there was no other evidence linking the five accused persons to the
commission of the offence. They are accordingly found not guilty and acquitted
at the closure of the State case.
29. Accused
twenty-nine. Paul Nganeropa Rukanda.
This accused person is the MDC-T
Organising Secretary for Glenview. He is 34 years of age. In his defence
outline he admits having attended the MDC-T t-shirt Visibility Day Celebrations
at Glenview 4 Shopping Centre to see how the proceedings were progressing.
Despite such involvement he denies having been part of the youths activities as
his responsibilities lie with the main wing.
It is his defence that after
monitoring events at Glenview 4 he went straight home. He denies ever going to
Glenview 3 Shopping Centre on that day. Although the state has not provided
independent evidence linking the accused to the commission of the offence, his
own admission of involvement and association with the group's cause provides a
nexus between the accused and the commission of the offence.
The accused having associated
himself with the cause of the group suspected of having killed the deceased, he
has a case to answer. He has the onus of proving that his association with the
group was entirely innocent. The Court needs to know as a matter of fact how
and at what point in time the accused stopped associating with the group
suspected of have killed the deceased. That being the case the Court comes to
the conclusion that the accused has a case to answer.
It is accordingly ordered that
the accused Paul Nganeropa Rukanda be and is hereby placed on his
defence.
In the final analysis it is ordered that the following
accused persons be placed on their defence:
1. Tungamirai Madzokere.
2. Yvonne Musarurwa.
3. Last Mayengehama
4. Lazarus Mayengehama.
5. Pheneas Nhatarikwa.
6. Edwin Muingiri.
7. Paul Nganeropa
Zimbabwe Lawyers for Human Rights, legal practitioners for the 1st to 27th
applicants.
Musendekwa – Mutisi, legal
practitioners for the 28th to 29 applicants.
The
Attorney General's office, legal practitioners for
the respondent.
