Fidelis Munyoro
Chief Court Reporter
NINE men accused of murdering Courage Ingwani during a deadly armed robbery in Harare are fighting to walk free without mounting a defence, arguing that the State has failed to produce evidence directly linking them to the fatal shooting.
In a dramatic turn in the High Court trial, all nine accused have applied for discharge and acquittal at the close of the prosecution case, insisting that the evidence presented falls short of establishing even a prima facie case against them.
The applications were filed on Tuesday, with prosecutor Mr Albert Masamba expected to respond by close of business on Friday.
Justice Lawrence Murasi, sitting with two assessors, is expected to deliver a ruling on Monday that will determine whether the accused are acquitted or called upon to defend themselves.
At the centre of the challenge is the defence argument that, although the State may have linked a recovered pistol to cartridge cases found at the murder scene, it has failed to establish that any of the accused possessed or fired the weapon during the attack.
Musa Taj Abdul, also known as Abdul Rahman Musa, and Charles Lundu, represented by Mr Frederick Nyamande and Mr Wishes Nziradzemhuka of Sande Legal Practitioners, have mounted a particularly forceful challenge to the prosecution’s evidence.
In a joint application under Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], the two argue that there is no evidential basis upon which a reasonable court could convict them of murder or any competent verdict.
Their lawyers say no witness identified either accused as one of the armed men who attacked Ingwani at 6107 Southview Park, Harare, on October 18, 2019.
They have also questioned the State’s reliance on a pistol recovered in Beitbridge on August 24, 2020, about 10 months after the murder.
According to the State’s evidence, the firearm was discovered inside a black satchel in a washing basket at premises associated with fellow accused Elisha Manhanga.
However, the defence argues that there is no evidence showing that Musa or Lundu placed the weapon there, owned it, handled it, knew of its presence or exercised control over it.
While conceding that the ballistic report may establish a forensic connection between the firearm and cartridge cases recovered at the murder scene, the lawyers insist that this does not identify the person who fired the weapon.
“The ballistic report may establish a forensic association between the examined firearm and cartridge cases recovered at the murder scene. It does not identify the person who possessed or discharged that firearm on 18 October 2019,” the submission states.
The defence further argues that the State has failed to distinguish between evidence linking a firearm to spent cartridge cases and proof that it fired the fatal bullet.
The investigating officer, Detective Sergeant Tirivangani Madhibha, also came under scrutiny, with the lawyers arguing that his testimony failed to independently connect either accused to the killing.
Det Serg Madhibha did not witness the murder and only attended the scene two to three days after the incident. He also did not personally witness the initial recovery of the spent cartridge cases.
The defence says no witness identified Musa or Lundu by name, appearance, recognition or through any formal identification procedure as having participated in the attack.
“No witness identified either accused … as one of the persons who entered the premises, assaulted anyone, fired a weapon or participated in the attack on the deceased,” the submission reads.
The lawyers also highlight the absence of cellphone evidence placing their clients at the crime scene or establishing their whereabouts on the night of the murder.
The State’s wider case included evidence relating to other alleged criminal incidents, including a robbery in Concession and an attempted robbery in Murehwa.
Prosecutors also presented evidence concerning a jerrycan identified by its owner through distinctive features, including initials and a repaired section, before its recovery from an abandoned Toyota Hiace.
But the defence argues that evidence of stolen property and its recovery cannot establish guilt by association without proof of the individual participation of Musa and Lundu.
The application also raises previous High Court appellate acquittals involving the two accused on an unlawful possession of the same firearm charge.
Although acknowledging that those acquittals do not automatically determine the murder proceedings, the defence argues that the findings in the earlier judgments must be considered before the State can rely on alleged possession of the pistol.
Another key issue is common purpose, under which the prosecution may seek to establish criminal liability even without proving that each accused personally fired the fatal shot.
The lawyers argue that joint charges, subsequent arrests or alleged association with a firearm cannot, on their own, establish common purpose.
“Common purpose is not established merely because several persons are jointly charged, arrested together at a later date, or allegedly associated with a firearm,” the submission states.
They maintain that the prosecution has failed to demonstrate that either Musa or Lundu agreed to the alleged criminal enterprise, participated in the attack or actively associated himself with those who carried it out.
The defence further argues that circumstantial evidence must be consistent with guilt and exclude every reasonable inference other than that the accused committed the offence.
“The court cannot send an accused person to his defence in the hope that he might provide a missing link in a prosecution case,” the lawyers contend.
The trial had previously suffered a major setback when proceedings before Justice Munamato Mutevedzi were ordered to start afresh following the death of an assessor and the judge’s subsequent transfer to Bulawayo.
The prosecution was consequently required to present its evidence anew.
The other seven accused — Elisha Manhanga, Tapiwa Mangoma, Prince Makodza, brothers Liberty and Godfrey Mupamhanga, Rudolph Kanhanga and Innocent Jairos — have also filed applications through their respective lawyers following the closure of the State’s case.
Monday’s ruling will, therefore, be a defining moment in the trial, determining whether the nine men must answer the charges or leave the dock without being called to defend themselves.
All the accused remain presumed innocent, and the allegations against them have yet to be determined by the court.
