BHUNU J: The accused is charged with
possessing weaponry for insurgency, banditry, sabotage, or terrorism in
contravention of s 10 (1) of the Public Order and Security Act [Cap 11: 17] Arising from that charge are
alternative charges of:
1.
Possession of
dangerous weapons in contravention of s 11 (1) 0f the Public Order and Security
Act [Cap 11: 17].or
2.
Unlawful
possession of prohibited firearms in contravention of s 24 (1) (d) of he
firearms Act [Cap 10:09] or
3.
Unlawful
possession of firearms in contravention of s 4 of the firearms Act [Cap 10: 09].
In the second count he is charged
with incitement to commit insurgency in contravention of s 6 of the Public
Order and Security Act [Cap 11: 17].
Admittedly these are very serious
offences punishable by death or life imprisonment. Not surprisingly the
proceedings are mired in controversy and emotions are highly charged There is
therefore need to proceed with extreme caution and due diligence
I would at the outset mention in
passing that at the beginning of these proceedings we were advised that there
were foreign observers who wanted to be introduced to members of the Court.
While our courts are open to members of the public, we accord no special
treatment to any class of persons regardless of their station or purpose in
life.
We operate in an adversarial criminal
justice system where a criminal trial is akin to a contest between the state
and the accused and the function of the Court is to a large extent that of a
referee or umpire.
The Court is therefore keenly aware, that
like in any other contest the audience or spectators attend Court for various
reasons, some are in support of one side or the other, some are neutral curious
observers and yet others pretend to be neutral when in actual fact they are not
disinterested curious observers.
Members of the public are
nevertheless free to attend our proceedings without let or hindrance not
withstanding their purpose for attending Court In the ordinary run of things,
the Court does not want to know why any member of the public may be attending Court
for fear that their purpose for attending Court might rub onto its shoulders
thereby undermining the independence of the judiciary and impartiality.
Impartiality, equality and fairness are
the bedrock upon which our criminal justice system firmly rests. Justice and
fairness demands that if foreign observers are to be accorded the privilege of
being introduced and rubbing shoulders with members of the judiciary the same privilege must be accorded to local
observers and audience and vice versa. This is however, unusual if not
ridiculous. For instance it is scandalous that members of the accused's family
may strive to introduce themselves to the bench. The same applies to state
functionaries and foreign observers who are not directly involved in these proceedings.
This explains why the Court turned down the request for the introduction to the
bench of any observers, foreign or otherwise.
Unfortunately, the presence of a high
profile unusual audience appears to have had an unsettling effect on both
counsels. The Court has noted a marked tendency to play to the gallery. Counsels
appear to have lost their usual composure. They have uncharacteristically resorted
to being quarrelsome and argumentative .as they try to outwit each other in the
glare of an unusual audience. They have tended to launch vicious personal attacks
on each other.
There is no gainsaying this is unacceptable
deplorable conduct. Both counsels are very senior respectable members of the
profession. They both know what is required of them I can only remind them of
the need to conduct these proceedings in a composed, ethical and civilized
manner. I am sure counsel will take heed for the good of the due administration
of justice.
I now turn to consider the preliminary issues before
me on the merits.
While preparing judgment on the preliminary
issues I discovered that sections 5 to 13 of the Public Order and Security Act [Cap 11:17] which form the bulk of the charges against the accused
were repealed by s 282 of 2004. Upon perusing the papers I realized that the
alleged offences had been committed between 2002 and 2006 and the proceedings
were saved by s 17 of the interpretation Act which provides that:
"17 Effect of repeal
of enactment
(1) Where an enactment
repeals another enactment, the repeal shall not—
(a) revive anything
not in force or existing at the time at which the repeal takes effect; or
(b) affect the
previous operation of any enactment repealed or anything duly done or suffered
under the enactment so repealed; or
(c) affect any
right, privilege, obligation or liability acquired, accrued or incurred under
the enactment so repealed; or
(d) affect
any offence committed against the enactment so repealed, or any penalty,
forfeiture or punishment incurred in respect thereof; or
(e) affect
any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid and any such investigation, legal proceeding or remedy shall be
exercisable, continued or enforced and any such penalty, forfeiture or
punishment may be imposed as if the
enactment had not been so repealed.
(2) Nothing in subsection
(1) shall be taken to authorize the continuance in force, after the repeal of
an enactment, of any statutory instrument made under that enactment.
(3) Where
an enactment repeals and re-enacts, with or without
modification, any provision of
any other enactment, all proceedings
commenced under any provision so
repealed shall be continued
under and in conformity with the
provision so repealed."
Upon discovery of this occurrence I
consulted both counsels in chambers
and
they both confirmed that the charges were in order.
The state has now applied for the striking out
of the accused's defense
outline on the basis that it does not
comply with s 66 of the Criminal Procedure and Evidence Act [Cap 9:07]
On the other hand the defence has
countered by applying for the striking out of portions of the summary of State case
arguing that they are not in compliance with section 188 of the Criminal Procedure
and Evidence Act [Cap 9:07].
Despite spirited submissions from
both counsels my perusal of the sections relied upon by both parties shows that
none of the parties is entitled to the relief sought in their respective
applications
Section 66 (6) provides for the
parties' respective duties and obligations in respect of the provision of the
state outline or defence outline. It reads:
"(6) Where an accused has
been committed for trial in terms of subsection (2) there shall be served upon
him or her in addition to the indictment and notice of trial—
(a) a document
containing a list of witnesses it is proposed to
call at the trial and
a summary of the evidence which each
witness will give,
sufficient to inform the accused of all the
material facts upon
which the State relies; and
(b) a
notice requesting the accused—
(i) to give an outline of his
or her defence, if any, to the charge; and
(ii)
to supply the names of any witnesses he or she
proposes to call in his or her defence together with a summary of the evidence
which each witness will give, sufficient to inform the Attorney-General of all
the material facts on which he or she relies in his or her defence; and
informing the accused of the provisions of s 67(2).
(7) The Attorney-General shall lodge with the
registrar of the High
Court a copy of the document and
notice referred to in subsection
(6).
(8) Where the accused is to be
represented at his or her trial by a legal practitioner, the legal practitioner
shall, at least three days, Saturdays, Sundays and public holidays excluded,
before the date for trial determined by the Attorney-General in terms of
s 160(1)—
(a) send to the Attorney-General; and
(b) lodge with the
registrar of the High Court; a document containing the information referred to
subsection (6)(b)."
It is self evident that the section
makes no provision for the striking out of an accused person's defence outline
on the basis that it is inadequate or does not address the merits. It simply
authorizes the Attorney General to request for a defence outline if any in
terms of para (a) of that section.
As can be seen the subsection provides
that, if the accused fails to provide a defence outline in conformity with the
provisions of s 66 the answer does not lie in striking out the defence outline
but the accused deliberately takes a calculated risk in terms of s 67 (2) which
reads:
"(2) If an accused has failed to mention any fact relevant to his or
her defence as requested in the notice in terms of s 66(6)(b), being a
fact which, in the circumstances existing at the time, he or she could
reasonably have been expected to have mentioned, the court, in determining
whether there is any evidence that the accused committed or whether the accused
is guilty of the offence charged or any other offence of which he or she may be
convicted on that charge, may draw such inferences from the failure as appear
proper and the failure may, on the basis of such inferences, be treated as
evidence corroborating any other evidence given against the accused.
(3) In deciding, in terms of
subsection (2), whether in the circumstances existing at the time the accused could
reasonably have been expected to mention any fact, the court may have regard to
the document referred to in s 66(6)(a)."
The mere fact that the defence outline was filed a day or so
out of time does not in my view give rise to the striking out of the defence
outline but it entitles the Attorney General to an extension of time to
consider the defence outline.
I therefore find that there is no merit in the state's
application to strike out the defence outline. If the defence outline for any
reason is defective the remedy lies in s 67 (2) of the criminal Procedure and Evidence
Act [Cap 9:07].
I now turn to consider the accused's counter application for
the quashing of portions of the state outline on the basis that they are prejudicial
to the accused in so far as they seek to rely on the evidence of a witness who
has no relevant evidence to give against him.
As I have already stated the application is grounded on the
allegation that it does not comply with the requirements of s 188 of the
Criminal Procedure and Evidence Act [Cap
9:07]. A reading of the section shows that it has no application in the High
Court as it relates to the Magistrates
Court. It reads:
"188 Outline of State
and defence cases
In a trial before a magistrate,
if the accused pleads not guilty or a plea of not guilty is entered in terms of
section one hundred and eighty-two—
(a) the prosecutor
shall make a statement outlining the nature of his case and the material facts
on which he relies: and
(b)
the accused shall
be requested by the magistrate to make a
statement outlining the nature of and the material
facts on which
he relies and, if he is not represented by a legal practitioner,
provisions
of subsection (2) of section one hundred and eighty-
nine shall be explained to him."
Despite the fact that the defence has
sought to rely on a section of the law
which is inapplicable in this Court I fail to see how the calling of a witness
who is going to say he has no relevant evidence to give against the accused can
be prejudicial to the accused. I also fail to see how such evidence can be said
to be irrelevant when it directly relates to the accused's guilt or innocence.
The defense's application is to a large extent based on what
the witness might have said at different fora outside these proceedings. That
much can only affect the weight of evidence. It is however the Court's
prerogative to weigh and assess the probity and sufficiency of evidence. No one
can do this on its behalf without usurping the function of the Court.
It is my firm view that this is a case crying out to be
determined on the merits rather than technicalities. How can this Court
determine the matter on technicalities when the life of a citizen is at stake?
On the other hand, how can this court resort to technicalities in determining
the matter when the security of the country is at stake?
It is therefore in everyone's
interest that this grave matter be determined on the merits rather than
technicalities. It is accordingly
ordered that both applications be and are hereby dismissed.
The Attorney General's Office, the States Legal
Practitioners.
Mutetwa and
Nyambirai, the Accused's Legal Practitioners.
