Online Reporter
Lovemore Kadzura
Post Reporter
A FORMER public prosecutor, Mr Timothy Katsande, was recently acquitted by the High Court after being convicted of defeating the course of justice by altering a rape charge to a lesser offence.
Mr Katsande, who was based at Chipinge Magistrates’ Court, was jointly charged with Mr Benjamin Basikiti, a lawyer with Mutendi, Mudisi and Shumba Legal Practitioners, who was acquitted by Mutare provincial magistrate, Ms Annie Ndiraya after a full trial.
Mr Katsande was convicted of altering a rape charge to a lesser offence of having intercourse with a minor.
Ms Ndiraya convicted Mr Katsande and sentenced him to 12 months in jail, suspending five months on condition of good behaviour.
The remaining seven months were set aside on condition that he performs 245 hours of community service at Chipinge District Hospital.
In a statement, the National Prosecuting Authority, said Mr Katsande filed an appeal at the Mutare High Court, challenging both the conviction and sentence, arguing that he did not commit an offence in the course of performing his duty.
“He argued that the State had failed to prove that he acted with the intention to defeat justice. He maintained that the statement of agreed facts arose from his professional assessment of the evidence contained in the docket, and that prosecutors regularly exercise discretion when determining how matters should proceed, including whether to accept a limited plea or to draft statements of agreed facts.
“The High Court ruled that the offence of defeating the course of justice requires clear proof of intention to interfere with or prejudice the administration of justice. The court noted that prosecutors are required to exercise professional judgement when handling criminal matters, and that an error of judgement or misinterpretation of evidence does not automatically amount to a criminal act.
“The court further held that the State had failed to demonstrate beyond reasonable doubt that Mr Katsande had deliberately intended to misled the court or interfere with the trial process. At most, the circumstances suggested a possible professional error or poor exercise of discretion, which on its own does not met the legal threshold for criminal liability under the relevant provision of the law. In light of the findings, the High Court concluded that the conviction was unsafe and could not stand. The appeal was therefore allowed, the conviction was quashed and the sentence imposed by the court was set aside,” noted the NPA.
Messrs Katsande and Basikiti were arrested by the Zimbabwe Anti-Corruption Commission for defeating the course of justice, a crime under Section 184 of the Criminal Law (Codification and Reform) Act, (Chapter 9:23).
The case was reported by the survivor’s father, leading to the arrest of the pair.
Mr Tirivanhu Mutyasira appeared for the State, while Mr Takunda Musara of Gonese and Ndlovu Legal Practitioners represented the duo.
Circumstances surrounding the case are that on December 28, 2024, the victim was allegedly raped by her uncle at her home.
The complainant’s wife reported the matter at ZRP Chipinge Urban the following day, in which her daughter was the complainant and her uncle the suspect.
The matter was allocated to, and investigated by, Constable Dzingai, which led to the arrest of the uncle on rape charges as defined in Section 65(1)(a) of the Criminal Law (Codification and Reform) Act, (Chapter 9:23).
On December 31, 2024, the accused, represented by Mr Basikiti, appeared at Chipinge Magistrates’ Court for initial remand. He was remanded in custody to January 10, 2025.
The matter was allocated to Mr Katsande for prosecution.
Messrs Katsande and Basikiti went on to produce a statement of agreed facts, which had completely different facts from the evidence in the docket. The agreed facts indicated that the victim and her uncle were not related, and that they had consensual sex.
With the statement of agreed facts in place, the accused person (uncle) went on to plead guilty to contravening Section 70 of the Criminal Law (Codification and Reform) Act, (Chapter 9:23), having sexual intercourse with a minor, and was sentenced to 36 months in jail, of which 12 months were suspended for five years.
He is serving 24 months in prison.
Ends.
