High Court Judge under fire

HIGH Court Judge Charles Hungwe has come under fire from the legal fraternity for denying justice to a 55-year-old man he convicted in 2003 but has failed to sentence over the past 10 years after losing his court records.

The man, Jonathan Mutsinze of Nyameni, Marondera has been languishing in Harare remand prison awaiting sentencing following his conviction on charges of robbery and murder with actual intent in 2003.

Mutsinze was arrested and convicted of car theft in 1998 and sentenced to six years and eight months, and while serving his sentence he was tried on other charges of murder and armed robbery committed in 1998.
His trial began in 2002 before Justice Charles Hungwe and was concluded in March 2003.
The trial prosecutor was Mrs Florence Ziyambi, who is now deputy attorney general (civil).

Mutsinze was convicted of murder with actual intent. Extenuation done before the matter was remanded to another day for sentencing.
According to sources at the High Court, the trial record which was retained by Justice Hungwe has never been seen again.
Meanwhile the accused has been languishing in remand because the matter is considered partially heard since it did not go for sentencing.

To make matters worse the tapes pertaining to Mutsinze's case were also erroneously erased before the matter was completed making the production of a duplicate record virtually impossible.

Now a veteran of the remand prison, Mutsinze's relentless quest for justice has acquainted him with the legal process and legal jargon.
"I am still here because the law is not taking its course," he said in a resigned tone.
Harare lawyer Mr Terrence Hussein of Hussein and Ranchod Legal Practitioners said it was surprising that such a miscarriage of justice could go on in Zimbabwe.
"Constitutionally every person has a right to a fair and speedy trial and to say somebody is waiting for 10 years to find out his fate is clearly in my view unconstitutional. It is violating his basic right not to have his case determined in a speedy manner. Mutsinze has a right to appeal to the Supreme Court to have his right determined or can have his case brought urgently on review to the Supreme Court in the same manner. However, it is surprising that things like that are happening in Zimbabwe," Mr Hussein said.

His sentiments were echoed by advocate Martin Dinha of the Zimbabwe Lawyers for Justice who said Justice Hungwe's conduct infringement on Mutsinze's rights.
"It is a lapse on the justice delivery system. It is definitely an infringement on his democratic and human rights. Accused persons should be brought before the courts and tried in a speedy manner. It is unconstitutional to stay under such conditions awaiting sentence."

A senior advocate who spoke on condition of anonymity equated Justice Hungwe's behaviour to criminal negligence.
"It is a fundamental and internationally recognised principle of the rule of law that justice delayed is justice denied. This poor fellow's justice has been grossly and scandalously violated by Justice Hungwe's inexplicable failure to sentence him after convicting him some 10 years ago of a very serious crime of murder.

"This means the public in this case has suffered double jeopardy. On the one hand we have justice denied through Justice Hungwe's grossly delayed sentence dating back to some 10 years ago. On the other hand we have a very clear unavoidable case of either gross incompetence or criminal  negligence on Judge Hungwe's part whose delayed sentence is nothing short of an inexcusable scandal which smacks of corruption of the criminal justice system," the advocate said.

Human rights lawyer Jeremiah Bhamu said Mutsinze's rights have been seriously violated because he can't even challenge his conviction in the absence of a sentence and record.

"He is clearly being denied his rights to protection before the law. As a convicted person he is entitled to know his fate. The law says trials should be done in a reasonable time and that includes sentencing. As it is he cannot even challenge his conviction without the record."

Chris Mhike of Atherstone and Cook said justice needed to be served.
"In terms of Zimbabwean and International Laws, all citizens are entitled to personal liberty. Both the Lancaster House Constitution which is the current fundamental law of the land, and the Copac draft which is about to become Zimbabwe's new basic law enshrine the right to personal liberty subject to applicable limitations.

"In the circumstances I would urge the authorities at the High Court registry to urgently locate Mr Mutsinze's file or create a dummy file or arrange for a trial de novo (fresh trial) if possible so that this grave injustice is cured," Mr Mhike said.

Mrs Irene Petras, the director of the Zimbabwe Lawyers for Human Rights, refused to comment saying she had not come across the case even though it has been highlighted before in the media with the latest coverage occurring only last month.

Mutsinze said he has tried on numerous occasions to have his case heard by various judges among them Justices Bharat Patel, Felistas Chatukuta and Joseph Musakwa, who all wrote letters of notification to Justice Hungwe to no avail.

"I do not know what happens now," Mutsinze said with a voice full of despair, "I am looking for a pro-deo, whenever I appear in court, I need somebody to represent me," he said.

A bishop with Jerusalem Apostolic Faith Church before his incarceration and husband to four wives and father to 10 children, Mutsinze said no one had visited him since 2007.
His family now consists of the prison wardens and fellow inmates he has been with over the years.

His greatest fear is joining his maker before his case is finalised like his co-accused Pedzisai Zhoya who passed on at the same prison complex in 2006.