COURT WATCH 3/2012

[23rd February 2012]

This bulletin outlines two cases involving deaths arising from inter-party political violence – both of which were eventually heard and resulted in convictions in the High Court.  The first case took an extraordinarily long time to come to trial – just under 10 years from original arrest to trial.  The second case took over two years from arrest to trial.

Killings in 2002 - Convictions in 2012

Background  The run-up to the 2002 Presidential election was characterized by many violent clashes between supporters of different political parties.  One such incident, in Zaka district in Masvingo province in March 2002, led to the deaths of two MDC supporters. 

Arrest and detention  The three accused, one of them the ZANU-PF Zaka district political commissar Muchakata Mupfiga, were arrested in 2002 and initially remanded in custody.

Released on bail  After six weeks they were freed on bail and remained on remand for 5 years until further remand was refused by the magistrates court, as a result of which they were discharged and remained at liberty until late 2011. 

Delays in the hearing of the case  There has been no explanation why the State did not have the case ready for so many years.  For the first 5 years the accused were on remand having been given bail.  [In murder cases it is unusual to grant bail because of the seriousness of the crime and risk of flight or intimidation of witnesses.]  For the next five years they were at liberty in spite of having been accused of murder, because the state did not proceed.  Such unexplained delays are inexcusable especially in serious cases as they may result in witnesses becoming unavailable or forgetting important details of events – quite apart from opening the door to nullification of proceedings on constitutional grounds [see below].

Case revived, accused indicted  The State revived the case in 2011 and in September the accused were summoned to the magistrates court and indicted for trial before the High Court on two charges of murder.  They were then re-detained and remained in custody awaiting trial. 

Trial  The trial took place at the High Court circuit in Masvingo earlier this month.  Evidence established that the deceased, both MDC activists, had been accused of stealing cattle from a ZANU-PF base commander.  Mupfiga led a group of militia in storming the first victim’s homestead and force-marching him back to their base.  There he died after being comprehensively assaulted over a period of three days: kicked, punched, hit with bricks, knobkerries, sjamboks and pieces of wood, stripped and his back burnt with burning plastic.  The second victim was also seized from his home and subjected to similar assaults at the camp over a period of two days ; he, too, died as a result.

Conviction and sentence  Mupfiga was acquitted of murder but convicted on two counts of the lesser crime of culpable homicide [newspaper reports were wrong in saying that he was convicted of murder].  His two accomplices were convicted on one count of culpable homicide.  Mupfiga was sentenced to 12 years’ imprisonment, 2 of them suspended on condition of good behaviour.  The others were each sentenced to 5 years’ imprisonment, one year suspended.  [Note: The difference between murder and culpable homicide lies in the mental state of the accused.  Murder is causing the death of another person intending to kill, or recklessly continuing a course of conduct despite realising that it may cause death the death of that person.  Culpable homicide is causing death negligently failing to realise that one’s conduct may cause death; or causing death realising that one’s conduct may cause death, but negligently failing to guard against that possibility.  Murder can be punished by the death penalty; the maximum penalty for culpable homicide is life imprisonment.  Criminal Law Code, sections 47 and 49.]  

Judge condemns lawlessness, urges acceptance of diversity  In passing the court’s judgment Justice Karwi:

• condemned the accuseds’ conduct in usurping the powers of the police and causing lawlessness in the area during the election period
• urged people to accept political diversity and put an end to political violence.

Convicted persons to appeal to Supreme Court  Mupfiga and his two accomplices plan to challenge the validity of the trial in an application to the Supreme Court, claiming infringement of their constitutional right to be tried within a reasonable time [Constitution, section 18].

2009 Gokwe Murder

Background  On 21st March 2009, Moses Chokuda, the MDC Gokwe District organizing secretary, was on his way to attend a MDC council meeting, when he was seized at the Gokwe Business Centre, forced into a white ZANU-PF vehicle and driven away.  His lifeless body was found abandoned in the bush two days later, 23rd March.  He had sustained serious injuries.  A medical report gave the cause of death as severe cervical spinal injury.  It later emerged that Chokuda had died on the night of 22nd March after a severe beating at the homestead of headman Esau Ndokwane in Nemangwe. 

Arrest and detention The six accused were only arrested on 2nd June 2009, almost two months after the death of Mr Chokuda:  Farai Machida [son of Midlands Governor Jason Machaya], Edmore Gana [a member of the Zimbabwe National Army [ZNA] and ZANU PF Midlands province youth secretary and son of ZANU-PF Gokwe District coordinating chairperson], his brother Bothwell Gana [also a ZNA soldier], Abel Maphosa, Obert Gavi and Tirivashoma Mawadze [the two last-mentioned both ZNA lance corporals].  They were soon released on bail.

Delays in the bringing case to court  The case lay unattended and unheard by the courts for the rest of 2009, all of 2010 and into 2011.  Moses Chokuda’s body continued to lie in the Gokwe District Hospital mortuary – his family had refused to bury him until restitution and an open and public apology had been given for his killing; full disclosure made of the circumstances and motive leading to his death; and the case heard by the courts and justice done.  On 26th April 2011, Chokuda’s father, Tawengwa Chokuda, wrote to the Attorney-General pleading for the State to bring the case before the courts so that the family could have closure.

Accused indicted for High Court trial  In August 2011 the accused were taken before the magistrate’s court and indicted for trial for murder at the next High Court circuit in September.  The delay that had occurred was explained by reference to witnesses having been unavailable and failure to complete the necessary paperwork.  The accused were remanded in custody and taken to prison to await trial.  On 16th September Machaya and three of the other accused were released on bail by Justice Musakwa, despite State opposition to bail being granted.

Trial  On 21st September the case began before Justice Mathonsi and two assessors.  The accused pleaded not guilty.  All the accused were legally represented.  During the six-day trial it emerged that Chokuda had been accused of stealing from Machaya’s supermarket and assaulted by all the accused.  

Conviction and sentence  On 26th September Justice Mathonsi handed down the court’s verdict.  Farai Machaya, Abel Maphosa, Bothwell Gana and Edmore Gana were found guilty of murder and sentenced to 18 years in prison.  Obert Gavi and Tirivashoma Mawadze were acquitted of murder but found guilty of the lesser offence of assault and sentenced to 12 months in prison; they were found to have assaulted Chokuda at the business centre before the later, fatal, assault.  

Judge condemns lawless behavior by accused soldiers  Justice Mathonsi told the four accused ZNA members that they had chosen to behave like privately hired soldiers and that such a flagrant disregard of the law would not be tolerated

Judge criticizes police conduct of case  In his judgment Justice Mathonsi also criticized the police investigation of the case, referring to evidence heard from State witnesses that they had given the police vital information which had been omitted from their formal witness statements produced in court: “we cannot exclude the fact that the police attempted to downplay what happened in favour of the defence.  The police omitted vital evidence which was led by State witnesses and this is not acceptable.”  Referring to crucial events related in court by the witnesses, the judge said: “All this was missing from their statements which they were made to sign without reading them.” 

Compensation and traditional restitution paid to Chokuda family  After the trial Provincial Governor Machaya said he accepted the court’s verdict on his son, and negotiations commenced between the Machaya and Chokuda families over compensation for the death of Moses Chokuda.  The negotiations were facilitated by Chief Njele.  Mr Machaya took full responsibility for compensating the Chokuda family, saying that the other accused had only become involved because they were assisting his son.  He would pay all the restitution required by the Chokuda family for his son and the co-accused.  On 16th October 2011 the families reached an agreement.  Mr Machaya agreed to compensate the Chokuda family with $15 000 and 35 head of cattle, 20 of which were delivered on the day with the remainder to come at a later stage.  The Governor also agreed to finance all the arrangements for the funeral of Moses Chokuda.  The Chokuda family accepted the compensation and apology.  [Comment: A criminal conviction a does not preclude separate civil proceedings for compensation or other redress for the wrong committed, whether the claim is under customary law – as in this case – or under the general law of Zimbabwe.  Under the Customary Law and Local Courts Act, customary law enjoys wide application, especially, but not exclusively, in disputes between indigenous Zimbabweans.  It is the only law applied in the “local courts” – courts of chiefs and headmen – which are part of the general court system.  Other courts apply customary law in appropriate cases.]

Burial after two and a half years  Moses Chokuda was finally buried at Chipere village, Gokwe, on 22nd October 2011, giving the Chokuda family closure and peace nearly two and a half years after his death.  He was 25 at the time of his death and was survived by his widow and two year old son.

Comment

In both cases the facts suggest a reluctance on the part of the police to pursue this sort of criminal case.  This has been a perennial MDC complaint against the police.  The GPA records the commitment of the three GPA parties to “ensuring that all state organs and institutions strictly observe the principles of the rule of law and remain non-partisan and impartial.”  Bringing perpetrators to justice regardless of political affiliation is essential if Zimbabwe is to throw off its long-standing reputation for impunity for the powerful.  The police need to take Justice Mathonsi’s criticism in the Machaya case seriously.  And it is hoped that the Attorney-General’s Office and the justice system will play their part in ensuring that criminal cases are dealt with expeditiously and with even-handed justice.

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