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Fidelis Munyoro-Chief Court Reporter
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 fraud-accused businessmen Mike Chimombe and Moses Mpofu for a referral to the Constitutional Court to determine their claim of violation of their rights by being tried by a High Court panel with assessors over the age of 70 has no merit.
This is a crucial point in the case, meaning that the application for referral to the Constitutional Court may be rejected 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.
The business partners are accused of fraud involving over US$7 million in state funds under a botched Government goats-supply tender.
They want their case referred to the Constitutional Court to determine their claim of violation of their rights by being tried by a High Court panel with assessors over the age of 70.
In its opposing papers filed at the High Court on Monday, the prosecution said there is no legal basis for anyone to ascertain the ages of assessors.
“The assessors are not obliged to disclose their ages,” stated prosecutor Mr Lovech Masuku, who submitted an affidavit on the matter. “The issues are being raised by the applicants seeking referral to the Constitutional Court in the abstract.”
Mr Masuku submitted that a separate application and not an interlocutory application should have been made compelling the assessors to divulge their ages if ever there was any provision for that. “The applicants are just hooting in the dark,” he said.
“It is not the procedure during criminal trials that members of the bench must divulge their ages first. Furthermore, the applicants do not say the matter is of public importance calling for a resolution on the merits.”
On the decision for live streaming, Mr Masuku stated that it did not need the involvement of the parties to a criminal trial since it is an administrative discretion by the presiding judge and Judicial Service Commission in respect of working out the modalities of livestreaming without disturbing the proceedings.
“Both parties were not inconvenienced in any way by the livestreaming,” he said. Mr Masuku argued that owing to the nature of the case, it was actually in the interest of justice that a much wider audience was reached.
“To allow or disallow live broadcast from the courtroom is in the discretion of the court guided by the interests of justice concept but subject to limitations imposed by the call for every case to depend on its own facts and circumstances.”
Mr Masuku also stated that the defence application for referral to the Constitutional Court was not properly before the court for want of compliance with the Constitutional Court rules.
“Without following proper procedures in terms of Rule 107 of this Court, the constitutional application is fatally flawed,” he argues.
“The applicants have failed to comply with the rules pertaining to constitutional applications.” In that regard, he sought for the application to be struck off and the trial to proceed.
Their trial was stalled after the two raised constitutional questions which they sought to be determined by the Constitutional Court.
Online Reporter