admin
Fidelis Munyoro
Chief Court Reporter
BUSINESSMEN Mike Chimombe and Moses Mpofu are heading for the High Court today to argue that their rights are being violated because the assessors in their criminal trial are aged above 70.
Their trial over the alleged embezzlement of US$7 million was halted earlier this month after they raised some constitutional questions.
One key question is whether it is legal to have assessors over 70 years old, sitting alongside a judge in a trial.
The two want the High Court to examine the question and if necessary, seek a Constitutional Court ruling.
Chimombe and Mpofu argue that the High Court Act does not specify a maximum age limit for assessors, which they claim contradicts the Constitution. The Constitution set a maximum age limit of 70, now 75 following an amendment, for judges and the two argue that this applies to all judicial officers serving on the High Court.
In all criminal cases tried in the High Court, a judge sits with two assessors and while the judge decides questions of law alone, on questions of fact the court works by majority vote with the three having an equal vote.
The prosecution has been arguing that there is no law limiting the age of assessors in High Court criminal trials and so the application of the fraud-accused duo for a referral to the Constitutional Court, has no merit.
This is a fundamental point in the case, meaning that the request for referral to the Constitutional Court may be overruled due to this technicality.
The Customary Law and Local Courts Act of 1990 also allows for the appointment of assessors in community courts, but there is no mention of age restrictions.
The High Court Act also does not provide any guidance on age limits for assessors in that court, where in criminal cases a judge sits with two assessors.
In essence, the prosecution’s argument that there is no law limiting the age of assessors seems to be supported by the available legislation.
However, the Constitutional Court may still consider the application if it raises significant constitutional issues.
In the present case, the prosecution argues that Chimombe and Mpofu’s application for referral to the Constitutional Court, is fatally flawed and should be rejected.
Mr Tapson Dzvetero assisted by Lorraine Tshaka is representing Mpofu while Professor Lovemore Madhuku and Advocate Garikai Sithole instructed by Mr Ashley Mugiya are acting for Chimombe.
Mr Whisper Mabhaudhi and Mr Lovech Masuku from the Prosecutor General’s Office are representing the State.
Online Reporter