Stalingrad antics frustrate course of justice

A YEAR after being arrested on charges of faking abductions, the MDC-Alliance trio of Joana Mamombe, Cecilia Chimbiri, and Netsai Marova have used all tricks available to avoid going to trial in what the State has described as attempts to frustrate the course of justice.

Although justice delayed is just denied, the MDC A trio has been throwing excuse after excuse leading the State to accuse them of employing Stalingrad tactics to wear down the whole process.

The trio was arrested on May 13, 2020, with the trial date having been set for September 4, 2020, but since then the opposition figures, who are out on bail, have been trying to dribble justice.

On September 4 when the trial was set to kick start, through their lawyers Mr Alec Muchadehama and Mr Jeremiah Bamu they brought a letter in court saying Mamombe had mental problems and could not comprehend court proceedings.

However, in terms of the Mental Health Act if a magistrate or judge observes that an accused person appears to have mental problems or if there is documentary evidence that the accused person has mental problems he or she must remand the accused person in custody and orders that two Government medical doctors examine the accused person.

The State led by Mr Michael Reza then applied for Mamombe to be remanded in custody while being examined by two Government medical doctors and the court granted that application which was immediately challenged by the defence counsel at the High Court in what was another attempt to delay justice.

The High Court then granted Mamombe permission to be examined by her doctors, she was subsequently released from custody. And since treatment was now under the hands of Mamombe's personal doctors they were the medical experts dictating the pace of trial as the State had no supervision over them.

In terms of the criminal procedure and evidence act, the State on November 14, 2020 then applied for separation of the trial between Mamombe and the two accused persons.

On November 23, 2020 the Deputy Chief Magistrate Mrs Bianca Makwande then ruled that Mamombe stands on her own while her co-accused jointly appear on the same charges.

According to court papers, the trial date for Chimbiri and Marova was set for December 7, 2020, and the defense counsel challenged this at the High Court.

After that a letter from Mamombe's doctors was produced in court showing that she was now fit to stand trial, the High Court then ordered that the trial of the trio proceed.

Prior to this, on July 28, 2020, the State had already furnished the defense counsel with all evidence required to start a trial including witness statements, mobile phone records showing that at the time the accused allege to have been under kidnap they were in and around Harare Central Business District.

Closed Circuit Television footage and witness statements also showing that they were at Belgravia shopping centre around 5 pm were furnished to the lawyers and signed by Mr Bamu who acknowledged receipt.

On August 2020, the lawyers requested further particulars in preparation of the case, and on September 7, 2020, the State furnished them lawyer Mr Bamu again signed acknowledging receipt.

Due to Covid-19 all the matters were remanded by Practice Directive by Chief Justice Luke Malaba and a trial date was set for April 28, 2021, of which the State reminded the defense counsel on April 14, 2021.

The State also wrote a letter to Officer in Charge Chikurubi female, requesting that a medical examination be done on Mamombe to establish if she was mentally fit to stand trial on April 28, 2021.

A medical examination was done by a prison Doctor on April 27, 2021, which certified her fit for trial. However, using their usual delaying antics on the trial date their lawyer Mr. Muchadehama allegedly made several applications including saying the trial had been stayed by the High Court but failed to produce a final order staying those proceedings, except a provisional one granted in December 2020.

Also the lawyers, despite being furnished with evidence they had requested to start a trial which was acknowledged by Mr Bamu, Mr Muchadehama denied having been supplied with such enough stuff listing several missing witness statements and documentary exhibits.

The lawyers then allegedly made another application for referral to the Constitutional Court in contrast to the law which required that they ought to give notice to the State, but the magistrate then said they could do so since they had formally made such a notice.

Mr Muchadehama said they were going to make another application for execution to the charges and the State said it was willing to respond to it. Mr Muchadehama then backtracked saying he wanted to make additions to the documents as a way of allegedly frustrating and buying time so that the State could not respond.

In a further bid to delay justice, the defence counsel also made an application for the recusal of the magistrate alleging that she was not fair, despite having made such an application at the High Court.

The magistrate then advised the lawyers to wait for the High Court to decide and she refused to be recused from the case arguing that it was the duty of a superior court to do so. The matter was then remanded to May 5 for trial continuation and on the same date, the proceedings were then stayed by the High Court.