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Daniel Nemukuyu Senior Reporter
High Court judge Justice Charles Hungwe says he believes murder convict Jonathan Mutsinze, who has been on remand awaiting a sentence since 2003, connived with the Judiciary and prison officers to ensure the disappearance of his record of proceedings and erasure of tapes as a way of evading sentencing.
Mutsinze was convicted of murdering a police officer and a security guard during a robbery.
Justice Hungwe found Mutsinze guilty of murder with actual intent in 2003, but has not yet sentenced him because the court record disappeared.
Mutsinze, through lawyer Mr Tazorora Musarurwa, last year approached the Constitutional Court saying he should be freed because of the delay in sentencing and disappearance of the court record.
The Constitutional Court gave Justice Hungwe a 30-day ultimatum last month to respond.
Harare provincial magistrate Mr Brighton Pabwe commissioned Justice Hungwe’s response on February 18, 2014.
It is in this affidavit that Justice Hungwe alleges corruption by judiciary and prison officers in the disappearance of the court records relating to Mutsinze.
Chief registrar of the superior courts Mr Walter Chikwana has set down the matter for Tuesday next week after the judge and the registrar of High Court Mr Sithembinkosi Msipa filed their affidavits explaining the 11-year delay in the sentencing of Mutsinze.
Justice Hungwe says there is 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.
“Clearly the applicant has not been candid with the court regarding his true status. He is a convicted person awaiting sentence for the murder of a police officer and a security guard during robbery at two different premises in one night.
“The applicant must take the court into his confidence in order to win its sympathy regarding whether to grant or dismiss his application,” he said.
According to Justice Hungwe lack of co-operation by the Attorney-General’s Office (now the National Prosecuting Authority) and defence lawyers over the years also contributed to the delay in finalisation of the matter.
“In spite of several requests to have the matter set down, no co-operation was forthcoming from both the office of the Attorney-General as well as the legal practitioner involved till I was moved from criminal trials court into a different division,” he said.
The judge said on two occasions he wrote to the then registrar of the High Court Mr Charles Nyatanga directing him to open an inquiry into the disappearance of the records but nothing was done.
Justice Hungwe said he had forgotten about the case for years until March last year when The Herald published the story.
“The matter slipped my mind over time until March 2013 when it hit the headlines of a local daily. I, again, requested that the matter be set down and I be furnished with the prosecutor’s docket in order to acquaint myself and proceed to sentence.
“This then is the reason behind the delay in sentencing the accused, presently the application before this honourable court.”
Mr Msipa deposed and filed an affidavit with the Constitutional Court giving the registry’s version of events.
“The transcription department indicated that recorded information on cassette tapes relating to this case is no longer available. All 22 tapes used on the case were erased and reused on other cases.
“Further information from transcribers is that on April 7, 2004 Mrs Matuku and Mrs Mufakose transcribed the record. It was signed out by the judge’s clerk on November 8, 2004 with a total of 530 pages.
“Subsequently, the record as transcribed and the judge’s notebooks could not be located. The tapes had been erased by the time a copy of the transcript was requested . . .”
Mr Msipa said last year there was an attempt to reconstruct the record but only the following documents were available:
1. Accused person’s warned and cautioned statement
2. State outline
3. Accused person’s defence outline
4. Post-mortem report
5. Indictment papers
6. Summary of evidence the State intended to lead from witnesses
7. List of witnesses
8. State’s closing submissions.
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