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Harare Bureau
High Court judge Justice Charles Hungwe has been cleared of any wrongdoing in the disappearance of the court record for murder suspect Jonathan Mutsinze. The Constitutional Court yesterday heard that Justice Hungwe had no reason to cause the disappearance of the record of proceedings for a matter that he was handling. Mutsinze has been in remand prison for 11 years accused of murder. Asked by the court if Justice Hungwe could have played any role in the disappearance of the record, Mutsinze’s lawyer Tazorora Musarurwa said the judge would not have derived any benefit from the development.
“There is no way that a judge of the High Court can ensure the disappearance of the record for a case he is presiding over. He had no reason to cause the record to disappear,” said Musarurwa.
Chief Justice Godfrey Chidyausiku said the hearing had failed to establish the culprit that caused the disappearance of the record and if anything, Mutsinze was the only person who was likely to benefit from the development.
“The judge, prosecutor and any other court officials would not have derived any benefit from the disappearance of the record.
“Who do you think stood to benefit from the disappearance of the record?” asked the Chief Justice.
Instead, the Chief Justice said Mutsinze was partly to blame for the delay in the finalisation of the matter because he never asserted his right to a judgment within a reasonable time over the past years. “In this case, the accused person never asserted his right to be tried within a reasonable time. He never asked for his judgment over the years,” said the Chief Justice.
The court yesterday reserved judgment in the matter after hearing arguments from both parties.
Mutsinze now argues that he was never convicted and challenges the prosecution to produce documentary proof of the conviction.
He argued that in the absence of a copy of the judgment, he remained an innocent suspect who is yet to be judged. Mutsinze said the newly reconstructed record was insufficient to enable the judge to properly come up with a judgment hence he should simply be freed.
Law officer Edmore Nyazamba, for the state, insisted that Mutsinze was convicted and he now awaits sentence. Nyazamba said Justice Hungwe, the trial prosecutor Florence Ziyambi, an assessor and an interpreter involved in the old trial, all confirmed the conviction hence the court has to believe his argument.
He urged the court to remit the case back to the High Court for sentencing or reconstruction of the judgment.
The court queried Ziyambi’s (now deputy Attorney General Criminal Division) two conflicting affidavits filed in opposing the same case.
One of the affidavits confirmed that Mutsinze had since been convicted while the other one indicated that no judgment had been passed.
Recently, Justice Hungwe said he believed Mutsinze, who has been on remand awaiting a sentence since 2003, connived with some court officials and prison officers to ensure the disappearance of his record of proceedings and erasure of tapes as a way of evading sentencing.
Justice Hungwe said there was strong evidence of collusion that led to the disappearance of the record of proceedings, premature erasure of tapes and vanishing of his handwritten notes.
“There is credible evidence at hand, which indicate accused person’s hand in the disappearance of this record from criminal registry as well as the erasure prematurely of the tape recording of the proceedings leading to his conviction on two counts of murder committed during a robbery.
“That evidence indicates collusion with officers at the High Court as well as prison officials around that time,” said Justice Hungwe.
Mutsinze was arrested for murdering a police officer and a security guard during a robbery.
Justice Hungwe said he found Mutsinze guilty of murder with actual intent in 2003, but has not yet sentenced him because the court record disappeared.
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