Supreme Court throws out Chombo's appeal

Court Reporter THE trial of former Finance Minister Ignatius Chombo on charges of criminal abuse of office will go ahead after the Supreme Court threw out his appeal for permanent stay of prosecution. Chombo was seeking permanent stay of prosecution on the basis of alleged torture by the army.

While the higher court upheld the lower court's decision to dismiss Chombo's application, the former minister successfully won the order for declaration of violation of his rights for alleged torture in the hands of the military.

Chombo, who was being represented by Professor Lovemore Madhuku, argued his appeal in November last year and the court's order was made available last week.

A three-judge panel agreed to grant the partial appeal after hearing submissions from both counsel submissions.

"The appeal succeeds in part," ruled the judges.

"The order of the court a quo dismissing the claim for a permanent stay of prosecution is upheld. "The order dismissing the declaration of the violation of rights is set aside."

The court then declared that the actions of the State towards the applicant between November 15 and 23, 2017, infringed Chombo's right to personal liberty protected by the Constitution.

The court also ruled that Chombo's right to be informed of the reason for his arrest at the time of his arrest as prescribed in the Constitution was also violated.

Chombo's appeal to the Supreme Court was prompted by the High Court's decision to throw out his application for a permanent stay of prosecution.

In dismissing Chombo's application, the court ruled that his alleged abduction by members of the Zimbabwe National Army during Operation Restore Legacy in November 2017, was not meant to extract a confession for criminal offences against him.

Chombo is facing a string of charges involving high-level corruption, fraud and criminal nuisance.

Following his arrest and his subsequent appearance in court on criminal charges, Chombo petitioned the High Court in 2018, seeking an order to compel the National Prosecuting Authority (NPA) and its boss Prosecutor-General Kumbirai Hodzi to permanently suspend his prosecution, alleging violation of his constitutional rights as enshrined in the Bill of Rights. He claimed to have been tortured at the hands of military personnel.

The then High Court judge, Justice Nicholas Mathonsi found no merit in the application. He made a finding that the circumstances under which Chombo was "raided, handcuffed, blindfolded and frog-marched to a vehicle, which took him to an unknown place where he was held captive for almost nine days", was not refuted in a meaningful way.

He also found that the ill-treatment infringed Chombo's constitutional rights as claimed, but raised the question whether or not the appropriate remedy should be an order for permanent stay of prosecution.

At the end, Justice Mathonsi found it appropriate to dismiss Chombo's application on the basis of the law principle that, "where the torture or ill-treatment of an accused person prior to charges being preferred against him or her has not resulted in a confession or the extraction of evidence sought to be used by the prosecution at the criminal trial, but the prosecution is relying on other evidence not obtained illegally, the accused person is not entitled to an order of permanent stay of prosecution even though he or she was ill-treated or tortured".