State v James Muromo and Zebron Matarirano

### Preamble
1
HH 286-2012
CRB No. REG 72/12
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STATE

versus

JAMES MUROMO

and

ZEBRON MATARIRANWA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 11 July 2012

REVIEW JUDGMENT

MATHONSI J:	The impunity of a cabal of 13 political zealots, the complicity of law enforcement agents, the lamentable misuse of the prosecutorial authority bestowed on public prosecutors and the disinterest of the trial court all rolled together is the epitome of all that should not happen in our criminal justice delivery system.  This matter is a living example of an injustice allowed to take root because of a serious dereliction of duty by those tasked with the protection of law abiding citizens of this country and the punishment of offenders without fear or favour.

A group of political activists were camped at a secondary school in rural Gokwe in December 2001 conducting all night political activities during which people were forced to attend and sing through out the night.  The group would target perceived political opponents and severely assault them for belonging to a political party opposed to theirs.  This way Rambisai Nyikadzinashe, a woman from Tasiyana Village under Chief Jiri in Gokwe South and Shepherd Tigere of Dera Village under Chief Nemangwe in Gokwe South who had been employed as a bus conductor by Mavesere Bus Service, were severely assaulted by this group on 23 December 2001 sustaining injuries from which they later died.

Although the assaults were perpetrated in broad daylight by named assailants in the full view of police officers, only the 2 accused persons were prosecuted more than 10 years after the commission of the offences and the rest of the assailants are said to be still at large.  No explanation is given for failure to bring them to trial and why it took so long to prosecute the matter.

As if that was not enough, it is unbelievable that the prosecution elected to prefer charges of culpable homicide when even the facts relied upon by the prosecution suggested that more serious charges of murder should have been preferred.

The 2 accused persons were arraigned before a regional magistrate at Gokwe on 14 May 2012 facing 2 counts of culpable homicide.  According to the charge sheet, in count 1 it is alleged that on 23 December 2001 at Manoti Business Centre Gokwe South, they unlawfully assaulted Rambisai Nyikadzinashe using whips, chains, knife, sticks and logs all over the body and on her private parts thereby inflicting injuries from which she died on 24 December 2001.

In count 2, it is alleged that they unlawfully assaulted Shepherd Tigere using whips, chains, knife, sticks and logs all over the body thereby inflicting injuries from which he died on 3 January 2002 at Chitungwiza Hospital.

The state outline presented to the trial court reads as follows:-

“COUNT ONE

The deceased is Rambisai Nyikadzinashe of village Tasiyana Chief Jiri Gokwe South and at the time she met her death, she was staying at Manoti Centre Gokwe South.

Accused number one James Muromo is a male adult residing at village Mudhando Chief Mkoka Gokwe South.

Accused number two, Zebron Matarirano a male adult residing at village Matarirano Chief Mkoka Gokwe South.

On 23  of December 2001 the two accused persons in the company of other co-accused persons who are still at large proceeded to the now deceased Rambisai Nyikadzinashe’s homestead and they force- marched her to a secluded place.  They accused the now deceased of supporting the Movement of the Democratic Change (sic) and as such ordered her to surrender all items in her possession belonging to that party.

The now deceased denied any link with the party and the accused started assaulting the deceased. James Muromo and another co-accused persons (sic) pulled deceased’s legs apart while Zebron Matarirano assaulted her with sticks on her private parts and all over her body.

The deceased was assaulted up to the time she fell unconscious, the accused person and co-accused carried her back to her homestead where they dumped her in the kitchen hut.

The following morning two local persons namely Chiedza Zungunde and Chiedza Chigombe were sent by accused and co-accused to check whether deceased was still alive.  The deceased was found dead.

Matter was then reported to the police who attended the scene.

Accused acted unlawfully.

COUNT TWO

The deceased is Shepherd Tigere of village Dera Chief Nemangwe Gokwe South and at the time he met his death he was employed by Mavesere bus company as a conductor.

The accused persons are as per count one above.

On the same date as in count one above, a Mavesere bus in which the deceased was part of the crew arrived at Manoti Business Centre.  All people that were in the bus were ordered to disembark.  The accused persons and co-accused who are still at large quizzed the deceased accusing him of being in love with Rambisai Nyikadzinashe and also being a member of Movement of Democratic Change (sic).

The accused persons and co-accused who are still at large started assaulting the deceased with fists.  The deceased was man handled and force marched to a secluded place where the accused and co-accused who are still at large took turns to assault him with sticks and chains, the deceased was assaulted up to the stage where he became unconscious.

The deceased was ferried by the accused persons to the bus.  The bus driver was ordered to drive the bus to Kana Mission Hospital.

The deceased was rushed to Gokwe Hospital where he was further transferred to Chitungwiza Hospital, the deceased passed away on 3 January 2002.

A post mortem, was carried out on the body of the deceased and the post mortem report may be produced before court as an exhibit.

Accused person acted unlawfully.”

These are very serious allegations and the facts relied upon by the prosecution suggest that the deceased persons were subjected to gang attacks with an assortment of weapons ranging from sticks to chains.  The assault on Rambisai was also directed to her private parts after her legs were pulled apart.  Both were assaulted until they lost consciousness.

It is therefore amazing that, armed with these facts, the prosecution decided to prefer lesser charges of culpable homicide when it should have charged the accused persons with murder.  Granted, the prosecutor is dominus litis, but he has a responsibility delegated to him by the Attorney General, to discharge a public function of prosecuting offenders.  In doing so, the prosecutor must ensure that the correct charges are preferred against offenders.  He fails in his duty if, for some unknown reason, he trivialises the offences by opting for lesser charges where serious ones should be levelled against the offender.

For his part, the magistrate, as the trier of facts with the objective of doing justice between man and man should not allow the prosecutor to abuse his prosecutorial mandate in this way.  The magistrate has a responsibility to ensure that suitable charges are preferred against accused persons who appear before him.  The magistrate must prevent the prosecutor from proceeding on a lesser charge where justice clearly requires that a more serious charge be preferred.

I associate myself fully with the words of CHEDA J in S v Thebe 2006(1) ZLR 208(H) 209 A-C that:-

“While it is part of our criminal procedure that the state is dominus litis, this rule is not absolute.  The trial court is a trier of facts whose main object is to do justice between man and man. It therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it.  It is therefore within its power to prevent the state from proceeding with the prosecution on a lesser charge where justice clearly requires a more serious one.  The reason is simply that where the state fails to prove the serious charge, the court in most cases, where provided, can always convict on a lesser charge.  It is therefore, the duty of every judicial officer to guard against the pitfalls of being misled by a prosecutor who opts for a lesser charge thereby avoiding the rigours of engaging in a fully fledged trial.”

A judicial officer should be a political eunuch who should be unwavering in protecting innocent citizens and ensuring that those who offend the law are adequately punished without fear or favour.

It should have dawned on the trial magistrate, the moment the above facts were presented to him, that the prosecutor was proceeding on a wrong charge. He should have realised that these facts pointed to a charge of murder and that prosecution on charges of culpable homicide was a sheer dereliction of duty on the part of the prosecution.

If the trial magistrate entertained any doubt as to the appropriateness or otherwise of murder charges, surely such doubt should have been wiped out the moment evidence was presented on behalf of the state.  The trial court accepted as credible the following evidence given by Peter Sibanda:-

“I will start with accused 1 and he murdered some people in the company of the other people who are still at large.  The second accused was at the scene but I did not see him doing anything which contributed to the death of the deceased ........... It must have been in 2001 ......

The accused persons were members of a political party and they were camping at a secondary school.  They were about 13 in number.  The accused persons, together with their colleagues invited people to a meeting and I arrived after the meeting had been held.  They had planned to stop a bus when it arrived.  This was a bus belonging to Mavesere.  People waited for the bus to arrive and some even went to the beer hall to drink.  Suddenly the bus arrived.  That is when the accused persons went to the beer hall and ordered the people to go to the bus.  People ran towards the bus and surrounded the bus.

Accused 1, Benson Mutembo, Titus Mahaso, Richard Madyira, Munemo Concern, Reason Chiponera demanded identification or party membership cards.  Passengers produced their membership cards and I saw the accused person and his colleagues taking the driver, the conductor called Shepherd and another third person and they were taken to a nearby bush behind the churches.  Whilst they were going to the bush they started assaulting Shepherd and he tried to run away.  They caught up with him at Mutamba’s shop where he sought refuge behind a police officer but the accused persons continued to assault him and he tried to escape by getting inside the Mutamba yard and when we got to the scene he had already fallen to the ground.

PP. 	What did accused do?

A.	 He participated in assaulting Shepherd with logs and sticks.

They continued assaulting him even when he was lying on the ground and Mr Mutamba came out and intervened ........

The accused persons were holding him by his hands and he was not in a position to walk.  They took him in the direction of Manzini shop and when they got behind the shop opposite The Methodist Church, they assaulted him all over the body telling him to confess the people who were involved in supporting MDC.  It was then that he produced a receipt which showed that he had paid for the membership of a certain party and they refused to accept that receipt. They then tore his trousers with a knife.  When he had been severely assaulted he confessed that he was involved in politics with one Rambisai and that is when they rushed to collect Rambisai.

When one Rambisai was brought, they started assaulting her.  Since she had some braids in her hair they uprooted the braids.  She tried to escape towards a certain bush, the accused persons caught up with her and assaulted her.  They pulled her out of the bush, they tore her clothes and left her naked.  They started assaulted (sic) her all over the body including her private parts.

They were using logs.

PP.  How big were the logs?

They were of my arm’s width.  At one point in time I observed them kicking the complainant with their feet on her chest.

Whilst she was being assaulted she asked for some drinking water, and one of accused’s colleagues urinated in her mouth and that when the drinking water was brought, another accused person’s colleague urinated in that water and she drank it.

A police vehicle came and the accused person tried to block the vehicle ...... The police officers told them that their acts were unlawful and that a person was supposed to support whichever party that he chose to support.  The police officers told them to release the two people that they had detained together with Shepherd.  The bus was then released to go to Manoti.  Shepherd was also taken to the police.”

The evidence of Peter Sibanda was corroborated in material respects by that of another state witness, Chiedza Chigombe.

I have stated that it was a shameful dereliction of duty for the prosecution to prefer culpable homicide charges against accused persons when armed with such evidence.  The trial magistrate should not have allowed such injustice to perpetuate.  I am in agreement with the pronouncement of CHATIKOBO J in S v Sabawu 1999(2) ZLR 314(H) 317D where the learned judge said:-

“These courts have on numerous occasions implored prosecutors to exercise care when preferring charges so as to ensure that the correct charges are put to offenders.  Magistrates for their part should not accept without question charges which are not consistent with the evidence put before them.  If it occurs to the magistrate during the course of the trial that the evidence established a more serious offence than the one brought against the accused, he or she should stop the trial in terms of s 54 of the Magistrates Court Act [Cap 7:10]  and refer the matter to the Attorney General.”

The magistrate should have stopped the trial and referred the matter the moment the evidence which I have reproduced above was placed before him.  He did not.  Instead he allowed himself to be used as a vehicle of this facade, this charade of a criminal trial.

If I had any doubts that this trial was a facade such doubts are eliminated completely by the conduct of the public prosecutor in failing, without proferring any reason what so ever, to produce the post mortem report for Rambisai.  He only produced the post mortem report for Shepherd and kept quiet about the report for count 2.

Here is a woman who was bludgeoned in broad day light, her body dumped in a kitchen hut at her homestead and her assailants made sure she was dead when, the following morning, they sent Chiedza Chigome and other girls to check if indeed she was dead.  When they confirmed she was dead the police were called and attended the scene.  One can only assume that a post mortem was performed on her and a report compiled.  Why then was it not produced in court?

In his judgment the magistrate ruled in respect of count 1 as follows:

“In the present case I am satisfied that all  the essential elements of this offence have been satisfied, but however the state did not tender the post mortem report in respect of the first count involving the deceased Rambisai Nyikadzinashe.  This omission on its own makes it difficult for the court to conclude that the deceased in count 1 died as a result of the assaults by the accused.  It is against this background that the court will proceed to return a verdict of not guilty in respect of count 1 since the state has failed to establish the link between the assault and her death.”

This, despite the fact that in terms of s 275 as read with the fourth schedule to the Criminal Law (Codification and Reform) Act [Cap 9:23] assault is a permissible verdict on a charge of culpable homicide.  The magistrate accepted the credible evidence that the accused person assaulted the deceased in count 1.  For that reason, even with the inexplicable exclusion of the post mortem report, at the very least the court should have convicted the accused person of assault in count 1 (one).

Instead, after the state withdrew after plea, charges against accused 2, the court acquitted accused 1 in count 1 and convicted him in count 2 and sentenced him to 9 years imprisonment of which 3 years was suspended on usual conditions leaving him with an effective sentence of 6 years.

That outcome cries out to the sky for intervention because it is a glaring absurdity.  The magistrate does not have jurisdiction to try murder cases.  He should have referred the matter to the Attorney General for murder charges to be preferred at the High Court.

I am now faced with a record where the offences committed were trivialised and the result offends all sense of justice.  Unfortunately, in terms of s 29 (2) of the High Court Act [Cap 7:06], I cannot even substitute a stiffer penalty.

The circumstances of this case are an indictment of our criminal justice system.  Gruesome offences were committed right under the noses of police officers.  In fact, one of the victims actually ran from his assailants to hide behind a police officer.  This did not deter the assailants from dragging him from there and severely assaulting him inflicting fatal injuries.  When the assailants were working on their second victim, a hapless young woman whose braids they had pulled off her head and they were assaulting her with logs even on her private parts, police officers arrived. They were even urinating in her month.

This did not stop the savagery as they went further to dump her lifeless body at her homestead.  Although the assailants are known, were mentioned by name, and the police officers witnessed the assault only to plead with the criminals to release the victims, we are told more than 10 years after the victims met their painful death, that the “co-accused persons are still at large.”  How can they be at large when the police officers witnessed the assault?  Why did they not arrest them then and there.  Why did it take such a long time to even commence this excuse of a trial.

It really leaves a sour taste in the mouth, as it suggests that the police just stood akimbo as innocent victims were bludgeoned to death in their full view.  The assailants were then allowed to walk free.  In my view, the police should do a lot of soul searching if they are to sustain any credibility in the eyes of those whose safety and well being they are sworn to safeguard.  The same can be said of the prosecution which did not acquit itself well in these proceedings and one would not be judging them harshly at all by saying that they not only trivialised the offence but at times appeared to protect accused persons showing no respect whatsoever for the sanctity of human life.

I conclude therefore that these proceedings were not in compliance with real and substantial justice.  I cannot confirm them and accordingly withhold my certificate.