News / Local
MDC Alliance activists' 'fake' abductions trial opens
29 Apr 2021 at 06:16hrs | Views
The trial of MDC-Alliance members Joana Mamombe, Cecilia Chimbiri and Netsai Marova on allegations of faking their abductions sometime last year opened yesterday despite the trio's spirited efforts to avoid prosecution through a plethora of applications, which the State said were aimed at delaying the hearing.
Mamombe, Chimbiri and Marova, who were being represented by lawyers Mr Alec Muchadehama and Mr Jeremiah Bamu, denied the charges when they appeared before Deputy Chief Magistrate Mrs Bianca Makwande. They are charged with publishing falsehoods prejudicial to the State.
Through Mr Muchadehama, the trio told the court that there was a provisional order granted by the High Court last December for the stay of court proceedings.
Mr Muchadehama said the High Court order had provisionally barred the courts from hearing the matter of Chimbiri and Marova.
The State applied for separation of their trials after Mamombe was deemed not fit to comprehend proceedings and it was granted. Irked by the magistrate's decision to grant the separation of trials, Chimbiri and Marova approached the High Court seeking a review of the lower court's ruling.
Mr Muchadehama then applied for the postponement of the matter to another day pending the High Court's decision on their application for review and in light of the provisional order for stay of proceedings that he claimed was granted by Justice Zhou in December.
"On December 17, 2020 we obtained a provisional order at High Court in which separation of trial was stayed pending decision of the order for the trial of Chimbiri and Marova to be stayed.
"What that means is that order stayed these trials. All these trials had been stayed at the High Court," he said.
Mr Muchadehama claimed that the State, through Mr Richard Chikosha, consented to granting of the review for separation of trial.
The State led by Mr Michael Reza said Mr Muchadehama's application was misplaced arguing that they intended to prosecute the three not Chimbiri and Marova, who were mentioned in the provisional order staying proceedings.
"The arguments are misplaced. The orders they drafted were straightforward. They were saying trial against Chimbiri and Marova should be stayed.
"The State wants to put charges to the three and there is no order against the three accused persons," he said.
Mr Reza also told the court that there was no order signed by the High Court judge confirming the stay of proceedings of the trio.
"There is no order signed by the judge as they alleged. Registrar of High Court confirmed that there is no such order," he said.
In her ruling Mrs Makwande said there was no order that was placed before the court staying proceedings in the matter and ordered that trial commences. But Mr Muchadehama was not outdone with the court's ruling. He then told the Mrs Makwande that they had indicated in their application for review of separation of trials that they wanted her to recuse herself from handling the matter.
Mr Muchadehama argued that even if there was no order staying the proceedings, Mrs Makwande was not eligible to hear the matter as they had applied for her recusal. He said they wanted to wait for the High Court's determination before she presided over the matter.
Again Mrs Makwande refused to entertain his application for her recusal saying they had already made it at the High Court through their application for a review on ruling on separation of trials.
Mr Muchadehama launched another bid to take the matter to the High Court challenging Mrs Makwande's decision.
Mr Muchadehama said he wanted the High Court to establish the meaning of a provisional order and challenge Mrs Makwande's refusal to entertain their application for recusal.
Mrs Makwande insisted on the opening of the trial saying the trio's applications can be made even at the midst of the trial. Mr Muchadehama then made another application asking for further documents, which he said they needed for preparation of their defence.
Among the documents they requested from the State are an expert witness statement, warrant of search and seizure from Econet and all statements made by detective Morgan Chafa during investigations.
They also requested for statement from police who undertook forensic finger prints from motor vehicle allegedly used in the abductions. Mr Muchadehama also demanded specific details on relatives, legal practitioners and friends that Mamombe, Chimbiri and Marova communicated during the alleged abductions.
Mr Reza told the court that they furnished the trio with all the documents they had requested on July 28, 2020 with Mr Bamu having signed for the papers upon being furnished.
Mr Muchadehama then rose to make an application for referral of the matter to the Constitutional Court saying his clients' rights had been violated. The court refused to entertain the application saying he was supposed to place the State on notice before such an application was made. It was when the trial opened with the trio denying the charges.
The matter was postponed to May 5 for trial continuation. Mamombe and Chimbiri's bail appeal hearing on another separate criminal charge has been set for Friday at the High Court.
Meanwhile, another political activist Tererai Obey Sithole, yesterday appeared in court charged with criminal nuisance after he allegedly sprayed graffiti at the New Government Complex in Harare on April 1 while demonstrating with other political activists. He is expected back in court today for bail ruling.
Mamombe, Chimbiri and Marova, who were being represented by lawyers Mr Alec Muchadehama and Mr Jeremiah Bamu, denied the charges when they appeared before Deputy Chief Magistrate Mrs Bianca Makwande. They are charged with publishing falsehoods prejudicial to the State.
Through Mr Muchadehama, the trio told the court that there was a provisional order granted by the High Court last December for the stay of court proceedings.
Mr Muchadehama said the High Court order had provisionally barred the courts from hearing the matter of Chimbiri and Marova.
The State applied for separation of their trials after Mamombe was deemed not fit to comprehend proceedings and it was granted. Irked by the magistrate's decision to grant the separation of trials, Chimbiri and Marova approached the High Court seeking a review of the lower court's ruling.
Mr Muchadehama then applied for the postponement of the matter to another day pending the High Court's decision on their application for review and in light of the provisional order for stay of proceedings that he claimed was granted by Justice Zhou in December.
"On December 17, 2020 we obtained a provisional order at High Court in which separation of trial was stayed pending decision of the order for the trial of Chimbiri and Marova to be stayed.
"What that means is that order stayed these trials. All these trials had been stayed at the High Court," he said.
Mr Muchadehama claimed that the State, through Mr Richard Chikosha, consented to granting of the review for separation of trial.
The State led by Mr Michael Reza said Mr Muchadehama's application was misplaced arguing that they intended to prosecute the three not Chimbiri and Marova, who were mentioned in the provisional order staying proceedings.
"The arguments are misplaced. The orders they drafted were straightforward. They were saying trial against Chimbiri and Marova should be stayed.
"The State wants to put charges to the three and there is no order against the three accused persons," he said.
Mr Reza also told the court that there was no order signed by the High Court judge confirming the stay of proceedings of the trio.
"There is no order signed by the judge as they alleged. Registrar of High Court confirmed that there is no such order," he said.
In her ruling Mrs Makwande said there was no order that was placed before the court staying proceedings in the matter and ordered that trial commences. But Mr Muchadehama was not outdone with the court's ruling. He then told the Mrs Makwande that they had indicated in their application for review of separation of trials that they wanted her to recuse herself from handling the matter.
Mr Muchadehama argued that even if there was no order staying the proceedings, Mrs Makwande was not eligible to hear the matter as they had applied for her recusal. He said they wanted to wait for the High Court's determination before she presided over the matter.
Again Mrs Makwande refused to entertain his application for her recusal saying they had already made it at the High Court through their application for a review on ruling on separation of trials.
Mr Muchadehama launched another bid to take the matter to the High Court challenging Mrs Makwande's decision.
Mr Muchadehama said he wanted the High Court to establish the meaning of a provisional order and challenge Mrs Makwande's refusal to entertain their application for recusal.
Mrs Makwande insisted on the opening of the trial saying the trio's applications can be made even at the midst of the trial. Mr Muchadehama then made another application asking for further documents, which he said they needed for preparation of their defence.
Among the documents they requested from the State are an expert witness statement, warrant of search and seizure from Econet and all statements made by detective Morgan Chafa during investigations.
They also requested for statement from police who undertook forensic finger prints from motor vehicle allegedly used in the abductions. Mr Muchadehama also demanded specific details on relatives, legal practitioners and friends that Mamombe, Chimbiri and Marova communicated during the alleged abductions.
Mr Reza told the court that they furnished the trio with all the documents they had requested on July 28, 2020 with Mr Bamu having signed for the papers upon being furnished.
Mr Muchadehama then rose to make an application for referral of the matter to the Constitutional Court saying his clients' rights had been violated. The court refused to entertain the application saying he was supposed to place the State on notice before such an application was made. It was when the trial opened with the trio denying the charges.
The matter was postponed to May 5 for trial continuation. Mamombe and Chimbiri's bail appeal hearing on another separate criminal charge has been set for Friday at the High Court.
Meanwhile, another political activist Tererai Obey Sithole, yesterday appeared in court charged with criminal nuisance after he allegedly sprayed graffiti at the New Government Complex in Harare on April 1 while demonstrating with other political activists. He is expected back in court today for bail ruling.
Source - the herald
