Ex-army captain challenges dismissal

A FORMER captain in the Zimbabwe National Army (ZNA), Solomon Ndlovu, is seeking reinstatement after he successfully appealed his six-year jail term for theft of a motor vehicle, at the High Court in September 2019.

Ndlovu, who was a chaplain at Mbalabala Barracks in Matabeleland South province, was in January 2018 convicted and sentenced to six years in jail for theft of a motor vehicle by a Beitbridge regional magistrate.

Two months of the sentence were suspended for five years on condition of good behaviour and five months were set aside on condition he paid US$2 500 restitution to businessman Osfael Mazibuko.

Aggrieved by both conviction and sentence, Ndlovu, through his lawyer Abel Ndlovu of Dube and Associates, filed an appeal at the Bulawayo High Court citing the State as respondent.

Ndlovu argued that the regional magistrate erred and misdirected himself by attaching a criminal liability on him for violating terms of an agreement that allowed him to take lawful possession of the vehicle.

He added that the agreement he had with Mazibuko was purely a civil matter.

The State did not oppose the application, saying both the conviction and sentence were improper.

As a result, two High Court judges, Justices Maxwell Takuva and Thompson Mabhikwa, on September 16 2019, set aside both conviction and sentence, and acquitted him.

He had, however, already served one year and eight months at Khami Maximum Security Prison on the outskirts of Bulawayo.

Following his acquittal, Ndlovu had hoped to be reinstated, but a letter signed by a lieutenant T Sibanda for director legal advisory services and litigation in the ZNA, stated that the ex-chaplain had been discharged, a position which he is disputing.

"We acknowledge receipt of Ref ‘A' in which you requested that your client be reinstated into the organisation.

"We regret to inform you that the command element abides by the commander's decision to discharge your client from the ZNA and it is, therefore, unable to restore his commission," the letter read.

"On a more positive note, the ex-officer will instead be considered to receive a pension cognisant of his service and age.

"Against this background, you are requested to convey the message to the ex-captain before we initiate the processing of his pension benefit," the army said.

However, Ndlovu, who had served the army for more than 37 years, told Southern Eye that his dismissal was unprocedural.

"The letter was written and signed by a junior officer on behalf of the army which is improper.

"I can't be discharged because this government erred by employing police officers as public prosecutors.

"I am being discharged on what ground? They should let me know. As far as I know, I am innocent.

"I was incarcerated over nothing and now the army wants to discharge me unprocedurally.

"No. Why can't they follow the country's laws? This thing is so painful," Ndlovu said.

The principles and guidelines on the right to a fair trial and legal assistance in Africa, endorsed by the African Commission on Human and People's Rights, require that victims of wrongful convictions be compensated.

A 2013 report titled: "Study of Victim Experiences of Wrongful Conviction", noted that when wrongfully convicted cases are exonerated, sometimes decades after the crime has occurred, it could completely disrupt the lives of the victims, disrupt the healing process, and result in re-victimisation.