State v Michael Madzande

### Preamble
1
HH 636 - 25
HCHCR 4482/25
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STATE

versus

MICHAEL MADZANDE

HIGH COURT OF ZIMBABWE

MUREMBA & CHITAPI JJ

HARARE; 16 October 2025

Review Judgment

MUREMBA J:

When this record was submitted for review, it was in handwritten form and virtually illegible. Upon instruction, the entire record was transcribed. However, even the typed version remained unintelligible. A court record is expected to provide a precise and reliable account of the proceedings. Nonetheless, I will proceed to review the matter. Where necessary, I will refer to excerpts from the record, quoting them verbatim to illustrate specific deficiencies. I have thoroughly read the record to ensure that all excerpts are reproduced exactly as they appear, without introducing any errors. All inaccuracies and irregularities originate from the trial magistrate.

The accused was convicted of assault as defined in s 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to pay a fine of USD 310 or, in default of payment, seven months’ imprisonment.

After perusing the judgment in this matter, I am compelled to express serious concern regarding both its substance and form.  A good judgment in a criminal matter is marked by clarity, coherence, and legal precision. It must begin with a concise summary of the charges, followed by a clear outline of the evidence presented by both the prosecution and the defence. The judgment should demonstrate a thorough analysis of the facts, applying relevant legal principles to each issue raised during trial. It must reflect impartial reasoning, showing that the judicial officer has weighed the evidence fairly and without bias. The reasoning should be logical and transparent, allowing both parties and any reviewing or appellate court to understand how the conclusions were reached. A good judgment also addresses the credibility of witnesses, explains why certain evidence was accepted or rejected, and articulates the standard of proof applied. Where the accused is convicted, the judgment must justify the finding beyond reasonable doubt; where acquitted, it should show that doubt was reasonably entertained. Finally, the language used must be formal, respectful, and free of ambiguity, ensuring that the judgment upholds the dignity of the court and reinforces public confidence in the justice system.

The manner in which the judgment in the present matter was articulated falls significantly short of the standards expected of a good judgment. I hereby quote the judgment verbatim.

“Accused was brought before court facing a charge of assault.

State alleges that on the 24th of April 2025 at Mbare Flats accused person assaulted complainant with an empty beer bottle and opening his realizing bodily harm okay. Accused in his defense indicated that they were at a bar that the complainant struck accused person with an iron bar. That many people gathered and left the scene. And witness to the incident complainant indicated that accused he had asked for sniff powder from the accused person from the complainant and complainant refused. That is when he accused person started assaulting the complainant. He took an empty beer bottle and assaulted complainant.

He indicated that the complainants the wife was having affair with the accused person. During cross examination accused person put it to the witness that the main issue is that the complainant's wife was being involved in a love affair with accused person. That on the night in question that is when the accused person took a bottle and assaulted the complainant. The complainant indicated that that also took place at a tuck shop but complainant says it took place at a beer hall. Second witness corroborated accused person's version of events that the incident took place at a tuck shop. The second witness indicated that she saw accused person assaulting complainant with an empty beer bottle and that accused assaulted complainant on the cheek and he fell down. The evidence by second witness is commensurate with what is indicated on the medical affidavit. She indicated that the accused person she indicated that the complainant fainted. During cross examination second witness maintained that the incident took place at the tuck shop and that complainant was assaulted using an empty beer bottle.

State case closed matter proceeded to defense case.

Accused abide by his defense indicating that he only used open hands to assault the complainant. Court in assessing evidence took into account that the complainant's evidence was corroborated by the second witness that he was seen assaulting the complainant with an empty beer bottle.

Accused was brought before court facing a charge of assault.

State alleges that on the 24th of April 2025 at Mbare Flats accused person assaulted complainant with an empty beer bottle and opening his realizing bodily harm okay. Accused in his defense indicated that they were at a bar that the complainant struck accused person with an iron bar. That many people gathered and left the scene. And witness to the incident complainant indicated that accused he had asked for sniff powder from the accused person from the complainant and complainant refused. That is when he accused person started assaulting the complainant. He took an empty beer bottle and assaulted complainant.

He indicated that the complainants the wife was having affair with the accused person. During cross examination accused person put it to the witness that the main issue is that the complainant's wife was being involved in a love affair with accused person. That on the night in question that is when the accused person took a bottle and assaulted the complainant. The complainant indicated that that also took place at a tuck shop but complainant says it took place at a beer hall. Second witness corroborated accused person's version of events that the incident took place at a tuck shop. The second witness indicated that she saw accused person assaulting complainant with an empty beer bottle and that accused assaulted complainant on the cheek and he fell down. The evidence by second witness is commensurate with what is indicated on the medical affidavit. She indicated that the accused person she indicated that the complainant fainted. During cross examination second witness maintained that the incident took place at the tuck shop and that complainant was assaulted using an empty beer bottle.

State case closed matter proceeded to defense case.

Accused abide by his defense indicating that he only used open hands to assault the complainant. Court in assessing evidence took into account that the complainant's evidence was corroborated by the second witness that he was seen assaulting the complainant with an empty beer bottle. But his the second witness said no bid blood with the accused person. There was no reason to lie against the accused person. Court is of view that even if accused person wanted to retaliate since he once indicated that it was a fight he should have used open hands and not an empty beer bottle since there was no imminent harm or threat to his life. In the circumstances court is of view that state managed to prove its case beyond reasonable doubt. Accused person is found guilty as charged.”

To begin with, the judgment is riddled with grammatical errors and incoherent sentence construction. Phrases such as “opening his realizing bodily harm okay” and “he accused person started assaulting the complainant” are not only grammatically incorrect but also devoid of clear meaning. The repetition of entire paragraphs, the inconsistent use of tenses, and the failure to distinguish between the roles of the complainant, accused, and witnesses render the judgment legally unsound and difficult to follow. The narrative lacks logical flow, and the factual findings are presented in a disorganized and fragmented manner, undermining the clarity and credibility of the court’s reasoning.

Furthermore, the judgment fails to properly analyse the evidence. There is no structured assessment of witness credibility, no clear findings of fact, and no application of the elements of assault to the facts. The court’s conclusion that the accused should have used “open hands” instead of a beer bottle is stated without reference to legal principles governing self-defence or proportionality of force. Additionally, the judgment does not adequately address the contradictions in the testimonies.

In addition to the deficiencies identified in the judgment, the record of proceedings reveals a series of serious procedural and substantive shortcomings that cast grave doubt on the overall integrity of the trial process. These deficiencies reflect a failure to adhere to fundamental principles of criminal procedure and demonstrate a troubling disregard for the rights of the accused, particularly in instances where the accused was unrepresented. Taken together, the lapses identified in both the judgment and the conduct of the proceedings undermine the fairness and credibility of the trial.

The pre-sentence inquiry is presented in a manner that is confusing. While it appears to begin as a dialogue between the court and the accused, it inexplicably transitions into questions directed at the complainant without any clear demarcation or indication that the complainant was formally called to give viva voce evidence. The absence of a clear demarcation between the questions posed to the accused and the questions posed to the complainant creates the impression that the court was conducting a single, continuous inquiry with the accused, when in fact it first engaged with the accused and later with the complainant. This lack of separation creates confusion to the record and violates basic principles of evidentiary recording.

The sentencing judgment delivered by the trial magistrate is equally fraught with errors that warrant serious concern. In the section for recording the relevant facts of the case, the magistrate wrote:

“The agreed facts are that the complainant and offender are not related. On 12 April 2025 May offender assaulted complainant using open hands and fists and an empty beer bottle realising bodily harm would Evidence before court ked to the conviction of the offender.”

This passage is not only grammatically incoherent but also substantively meaningless. It fails to convey a clear narrative of the facts of the case. It lacks proper sentence structure, and contains typographical errors that render it unintelligible. This reflects a worrying lack of concern by the learned magistrate about her standard of work.

Moreover, the magistrate’s interpretation of the sentencing framework is demonstrably incorrect. The sentencing judgment reads:

“The presumptive penalty for this offence where there are aggravating factors is level 14 fine or 10 years imprisonment and when there are mitigating factors it is level 4 fine.”

This is a fundamental misstatement of the law. According to the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, the statutory maximum penalty for assault is level 14 fine or 10 years’ imprisonment, but the presumptive penalty is 2 years’ imprisonment where aggravating factors are present, and a level 4 fine where mitigating factors exist. The magistrate’s conflation of statutory maximums with presumptive penalties reveals a lack of understanding of the sentencing guidelines and their proper application.

During the pre-sentence inquiry the offender was asked the following question.

“Q. Why did you commit the offence?

A. I wanted to pay rent.”

The response, “I wanted to pay rent,” is clearly incongruent with the offence of assault and should have prompted immediate clarification from the trial magistrate but that was not done. Assault is a crime of violence. It is not ordinarily committed as a means of generating income or meeting financial obligations. It is difficult to understand why the offender would give such an illogical answer. The magistrate’s failure to interrogate this response reflects a lack of engagement with the accused and the factual coherence of the case. A properly conducted pre-sentence inquiry should probe the offender’s motive or reason for committing the offence. An illogical answer needs to be probed. It is essential that judicial officers not only record responses but also evaluate their relevance and logical consistency, especially when such responses bear directly on the gravity of the offence and the appropriateness of the sentence.

Concerning is the lack of a proper explanation of sections 188 and 189 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA). These provisions govern the procedure where an accused person pleads not guilty and outline the requirements for a defence outline. In terms of Sections 188(b) and 189 of the CPEA, a magistrate presiding over a trial involving an unrepresented accused person has a duty to provide a clear and comprehensive explanation of the accused’s rights and the implications of making or withholding a defence outline. Under Section 188(b), if the accused pleads not guilty, the magistrate must inform such accused that he/she may elect to make a statement outlining the nature of his/her defence and the material facts on which the defence is grounded or supported. Crucially, if the accused is not represented by a legal practitioner, the magistrate must explain to the accused the right to remain silent and the consequences of exercising that right. This explanation should emphasize that the accused is under no obligation to make a statement and that choosing to remain silent cannot be held against them. Choosing to remain silent and not to testify or be compelled to give self – incriminating evidence is the accused person’s Constitutional right. The magistrate must also clarify that any statement made at this stage may be used as evidence during the trial and that the accused should only disclose facts which he/she is certain of, without feeling compelled to respond to every allegation made at that stage.

Section 189 further outlines the legal consequences of the accused’s decision to make a statement or to withhold relevant facts. If the accused chooses to make a statement, it may be considered by the court when determining guilt. However, if the accused fails to mention a fact relevant to his/her defence, particularly one which the accused could reasonably have been expected to disclose at the time, the court may draw adverse inferences from that omission. These inferences may be treated as corroborative of any other evidence against the accused. Therefore, the magistrate must ensure that the accused understands that while he/she is not required to reveal a full defence at this stage, omitting key facts can later be interpreted negatively. The magistrate must give the explanation in simple, accessible language, free of legal jargon. The explanation given should be recorded in the court proceedings to ensure transparency and that the correct explanation was given by the magistrate. Ultimately, the magistrate’s role is to safeguard the accused’s right to a fair trial by ensuring that choices made by the accused are informed, voluntary, and free from undue pressure.

In the present case, the magistrate’s explanation of the defence outline was inadequate and failed to meet the standards set out in Sections 188(b) and 189 of the CPEA. The explanation was as follows.

“Since you are denying offense court is now giving you an opportunity. When you denied the offense mention all material facts. Failure court will take it that you committed the offense. PROVISIONS OF SECTION 188 - 89 EXPLAINED TO THE ACCUSED AND UNDERSTOOD”

This explanation is problematic on several levels. Firstly, it does not properly inform the accused of his right to remain silent, which is a critical safeguard, especially for unrepresented individuals. The law requires that this right be clearly explained, along with the assurance that choosing to remain silent cannot be used against the accused. Instead, the magistrate’s wording implies that silence will be interpreted as guilt, which is coercive and undermines the presumption of innocence.

Secondly, the explanation lacks clarity on the voluntary nature of the defence outline. The accused must be told that he/she is not obliged to make a statement and that any statement he/she makes may be used as evidence against him/her. The magistrate’s phrasing does not convey this. Rather, it suggests that the accused is compelled to disclose all material facts immediately, which could prejudice their defence. Moreover, the statement fails to explain the consequences of omitting relevant facts. Section 189 allows the court to draw inferences from such omissions only when it is reasonable to expect the accused to have mentioned those facts at the time. However, the magistrate’s language implies that any failure to mention facts will automatically be taken as proof of guilt, which misrepresents the law and places undue pressure on the accused. For an unrepresented accused, especially one unfamiliar with legal procedures, it is essential that the magistrate ensures comprehension by the accused through a careful explanation. In sum, the magistrate’s approach in explaining the purpose and process of giving a defence outline as outlined in s 188(b) and 189 of the CPEA was legally flawed, coercive in tone, and failed to uphold the accused’s right to a fair trial which is a Constitutional right.

The following was the accused’s defence outline, consisting of five short and vague sentences. I reproduce it as recorded by the magistrate.

“- We had a bar there were many people.

- He struck me with an iron bar.

- People gathered, many people gathered.

- I started bleeding.

- 1 left place to be attended.

- That is all.”

The defence outline provided by the accused is vague, incomplete, and legally inadequate for the purposes of a fair trial. It lacks clarity, coherence, and essential details that would allow the court to understand the nature of the accused’s defence. This is particularly concerning given that the accused was not legally represented, which placed a greater duty on the magistrate to guide and assist him in presenting a meaningful defence outline.

The defence outline begins with “We had a bar there were many people.” The sentence is grammatically incorrect and lacks clarity. It does not establish a clear context of the alleged offence. It is unclear whether the accused was working at the bar; owned the bar or visiting. The next line, “He struck me with an iron bar,” introduces an act of violence but fails to identify who “he” is, and what led to the confrontation. The court did not probe or seek clarification, thus leaving the reader to speculate that the complainant may have been the assailant. The repetition of “people gathered, many people gathered” does not clarify the sequence of events or the relevance of the crowd. The statement “I started bleeding” and “I left place to be attended” suggests the accused was injured and sought medical attention, but again, there is no explanation of how this relates to his denial of the charge, whether the accused acted in self-defence, or whether he was the victim or aggressor. The final line, “That is all,” confirms the accused did not understand the importance of providing material facts that support his defence.

Given these deficiencies, the magistrate ought to have intervened constructively. The lack of judicial engagement with the accused’s version of events reflects a failure to facilitate a fair trial and to ensure that the accused’s defence was properly articulated and understood. Section 188(b) of the CPEA requires the magistrate to explain the purpose of the defence outline and the accused’s right to remain silent, especially when unrepresented. However, beyond this, the magistrate has a duty to ensure that the accused understands what is expected in a defence outline. The magistrate should ask clarifying questions in a neutral and non-leading manner to help the accused articulate their version of events. For example, in casu the magistrate could have asked the following questions: “Can you explain what happened before the person struck you?”; “Do you know the person who struck you; “What was the reason for the confrontation?”; “Did you assault the complainant in any manner? Why did you assault the complainant?” These types of questions would have helped the accused provide a clearer and more structured account without compromising his right to silence or pressuring him to incriminate himself. The defence outline given by the accused clearly demonstrates that the magistrate failed to discharge her duty to assist the unrepresented accused in understanding and exercising his rights. A more proactive and sensitive approach was required to ensure that the accused properly presented his defence and that the trial was conducted fairly.

When the State case commenced, the following evidence was recorded.

“STATE CASE OPENS.

Give your own evidence.

Q. Witness two witness one, you know accused?

A. Yes.

Q. What did you do?

A. He assaulted me when I don't remember.

Q. Where?

A. Butterfly Place.

Q. What happened?

A. He asked for snuff powder and I refused. He said I am always assaulting his

sister who is my wife. He started assaulting me. He assaulted assaulting me with a

with an empty beer bottle. I fell unconscious. When I woke up he was there. That

is all.

Q. Where were you hit?

A. On the left cheek and I fell.

Q. Who else was there?

A. My wife was there.

Q. Were you medically examined?

A. Yes.

Q. State believes to tender medical affidavit.

ACCUSED PERSON IS NOТ ОВЈЕСCTING.

No objections.

By court

Accepted and marked exhibit 1.”

The opening statement, “Give your own evidence,” is ambiguous and procedurally inappropriate. It is unclear who was being addressed, and whether the person was a witness, The first question, “Witness two witness one, you know accused?” is grammatically incoherent and lacks context. The record does not identify the witness by name, nor does it confirm whether the witness took an oath or affirmation, which is a mandatory requirement for the admissibility of testimony. Sections 249, 250, and 251 of the CPEA govern the procedures and legal requirements for witnesses giving evidence under oath, affirmation, or in exceptional cases, without either. These provisions are designed to uphold the integrity of testimony given in court while accommodating individual beliefs, limitations, and circumstances.

Section 249 establishes the general rule that all witnesses must give evidence under oath unless they fall within the exceptions outlined in Sections 250 or 251. It also requires that the oath be administered in a form that the witness understands and considers binding on his/her conscience. This ensures that the witness appreciates the seriousness of the obligation to tell the truth and that the oath has meaning to them personally, be it of a religious or secular nature. Section 250 provides for affirmations as an alternative to oaths. If a person objects to taking an oath, often for religious or personal reasons, they may instead make a formal affirmation. The law recognizes affirmations as having the same legal effect as oaths, meaning that testimony given under affirmation carries equal weight and is subject to the same penalties for falsehood. Furthermore, any official authorized to administer oaths must accept an affirmation in its place, and any false affirmation is punishable in the same manner as perjury committed under oath. Section 251 addresses situations where a witness cannot comprehend the nature or religious significance of an oath or affirmation due to youth, lack of education, or other causes. In such cases, the court may still admit the witness’s testimony, but only after the magistrate or judge has admonished the witness to speak the truth. The court must also administer a form of admonition that is appropriate to the witness’s understanding and conscience, provided it is not immoral, inhuman, or irreligious. Importantly, even though the witness is not sworn or affirmed, they are still subject to penalties if they knowingly give false evidence. If their false statement would have amounted to perjury had they been sworn, they may be convicted and punished accordingly.

In summary, these sections collectively ensure that all witnesses, whether sworn, affirmed, or unsworn (admonished), are bound by a legal and moral obligation to tell the truth, and that their testimony is treated with equal seriousness under the law. They also reflect the law’s flexibility in accommodating diverse beliefs and capacities while maintaining the integrity of judicial proceedings.

The above excerpt from the record of proceedings reveals a serious procedural irregularity that undermines the integrity of the trial and the admissibility of the evidence presented. The failure to identify the witness by name and to confirm whether the witness was sworn in or affirmed before giving testimony is a direct violation of Sections 249 to 251 of the CPEA. Evidence given without the proper legal foundation, namely, an oath or affirmation or admonition, is inadmissible and cannot be relied upon to support a conviction. The magistrate’s failure to record these foundational details reflects a disregard for basic procedural safeguards. At the minimum, the magistrate ought to have ensured that the witness was properly sworn in or affirmed, and that this was clearly recorded in the proceedings. If the witness was unable to take an oath or affirmation due to ignorance, or some other cause, the magistrate should have followed the procedure under Section 251, of administering an appropriate admonition and recording the reasons for proceeding without an oath. Additionally, the magistrate should have ensured that the witness was properly introduced by name and that the record reflected this.

The remainder of the record of proceedings in this matter continues to expose serious procedural deficiencies that undermine the fairness and credibility of the trial. Throughout the proceedings, the learned magistrate consistently failed to record the names of witnesses at critical stages. For instance, the second witness is merely referred to as “second witness sworn,” with no indication of her identity. Similarly, when the accused gave evidence, the record simply states “witness sworn,” again omitting his name. This lack of specificity is unacceptable in a formal judicial record, where precision and accountability are essential. The failure to identify witnesses makes it impossible to verify who actually testified, thereby compromising the integrity of the judgment. The identity of each witness must be clearly recorded to ensure that their testimony can be properly referenced and assessed. Without this information, it becomes exceedingly difficult to draft a coherent and meaningful judgment. Moreover, the absence of names impairs the accused’s ability to understand the judgment when it is read out, and places an undue burden on the interpreter, who struggles to convey the content accurately and intelligibly to the accused.

Another serious concern in this matter is the improper production of the medical report, which was not handled in accordance with the procedure outlined in sections 278 and 279 of the CPEA. Section 278(11) specifically provides that a medical affidavit is inadmissible unless the accused has been given three days’ notice of its intended production, or has waived that right and consented to its admission. In this case, there is no indication that the magistrate explained these rights to the accused, who was unrepresented. The record simply states: -

“Q. State believes to tender medical affidavit.

ACCUSED PERSON IS NOT OBJECTING.

No objections.

By court Accepted and marked exhibit 1.”

This exchange is vague and procedurally deficient. It is unclear who was speaking. There is no evidence that the accused was properly informed of the legal implications of consenting to the production of the medical report. There is no record to show that the accused was given prior three days’ notice in terms of the law, nor that his consent was informed and voluntary. Critically, there is no indication that the accused understood that by consenting, he was accepting the truth and accuracy of the report’s contents. The report was not read out to him, nor was he advised of his right to have the medical practitioner called to give oral evidence and to be cross-examined should he dispute the findings.

In cases involving unrepresented accused persons, the court bears a heightened duty to ensure that procedural safeguards are strictly observed. The consent of the accused to the production of the report is only valid if it is preceded by a full and clear explanation of the accused’s rights given under the law. The magistrate’s failure to provide this explanation constitutes a serious procedural irregularity. It undermines the fairness of the trial and renders the medical report improperly admitted. Consequently, the report cannot be relied upon as evidence against the accused. Judicial officers must be reminded that procedural fairness is not a formality. It is a cornerstone of justice.

According to John Reid Rowland’s Criminal Procedure in Zimbabwe LRF, May 1997 at page 16-31, when an accused person is not legally represented, the magistrate has a duty to explain the process and purpose of cross-examination in clear and simple terms. The magistrate must inform the accused that cross-examination is the accused’s opportunity to question each prosecution witness after the witness has given his/her evidence-in-chief. This process allows the accused to challenge the truthfulness, reliability, and accuracy of the witness’s testimony, as well as to present his/her own version of events where it differs from the witness’s account. The magistrate should emphasize that the accused is not required to ask questions, but that failing to do so may result in the court accepting the witness’s version without challenge. It is also important for the magistrate to explain that cross-examination is not the time to make statements or arguments, but rather to ask relevant and respectful questions that test the witness’s credibility, memory, or possible bias. If the accused struggles to formulate questions, the magistrate may assist by guiding him/her in a neutral manner, without leading or influencing the accused’s defence. Crucially, the magistrate must ensure that the accused understands that cross examination provides him/her the chance to put his/her version of events to the witness. A failure to do so may prevent them from raising that version later without it appearing as an afterthought. This explanation must be recorded in the proceedings to uphold transparency and safeguard the accused’s right to a fair trial.

In casu the court’s explanation of the purpose and process of cross-examination to the accused was as follows.

“You heard what the witness said. Court is now giving you an opportunity to put questions to the witness. Failure court will take it that you committed the offense. Dispute his evidence - Purposes of cross examination put to the accused and understood.”

The magistrate’s explanation was fundamentally flawed and failed to meet the standards required to ensure a fair trial, particularly for an unrepresented accused. The explanation is coercive, misleading, and legally inappropriate. It does not reflect the true purpose of cross-examination, nor does it safeguard the accused’s right to a fair and impartial hearing.

Firstly, the explanation wrongly implies that the accused is compelled to cross-examine the witness, and that failure to do so will automatically be interpreted as an admission of guilt. This is a serious misstatement of the law. While cross-examination is a vital tool for challenging the prosecution’s case, the accused retains the right to remain silent and is not obligated to ask questions. The court may draw inferences from a failure to challenge evidence, but such inferences must be reasonable and contextually justified, not automatic or punitive. The magistrate’s wording effectively pressures the accused into participating without properly informing him of his rights or the consequences of his choices.

Secondly, the explanation lacks clarity and fails to educate the accused on the actual purpose of cross-examination. It does not explain that cross-examination is an opportunity to test the credibility of the witness, expose inconsistencies, and present the accused’s version of events. Instead, the phrase “Dispute his evidence” is vague and unhelpful, offering no guidance on how to formulate questions or what kind of issues the accused might raise. For an unrepresented person, such minimal instruction is wholly inadequate. The explanation given to the accused appears to be a procedural formality rather than a genuine effort to ensure the accused was properly informed. A proper explanation should have emphasized the voluntary nature of cross-examination, its strategic purpose, and the accused’s right to challenge the evidence in a meaningful and informed way.

When an accused person is put on his/her defence, in terms of Section 198(6) to (9) of the CPEA, the court assumes a critical duty to ensure that the transition from the prosecution’s case to the defence is handled fairly, transparently, and in accordance with the law, especially when the accused is unrepresented. At the close of the prosecution’s case, the court must first ask the accused, or his/her legal representative if represented, whether it is intended to lead evidence for the defence and whether the accused personally intends to testify. This inquiry is not merely procedural; it ensures that the accused is aware of his/her right to testify or remain silent. If the accused is not legally represented, the court must go further and explain the provisions of the proviso to subsection (8), subsection (9), and section 199(1). These provisions deal with the order and manner in which defence evidence may be presented, the possibility of being questioned even if the accused declines to testify, and the implications of remaining silent.

The court must ensure that the accused understands that if he/she elects to give evidence, he/she will be examined like any other witness, and that any other defence witnesses will also be subject to examination. Importantly, the law provides that no defence evidence may be led before the accused has either testified or been questioned by the court or prosecutor, unless the court exercises its discretion to allow it. This rule preserves the logical sequence of the defence case and ensures that the accused’s position is clearly established before other evidence is introduced. If the accused declines to give evidence, subsection (9) allows the prosecutor and the court to question the accused nonetheless. If the accused is legally represented, their lawyer may then re-examine them, but only within the limits applicable to re-examining one’s own witness. This provision ensures that the court can still clarify the accused’s position even if they choose not to testify formally.

In short, the court’s duty under these provisions is to guide the accused through the procedural and evidentiary implications of presenting a defence, to ensure they understand their rights and options, and to maintain the integrity and fairness of the trial process. This duty is heightened when the accused is unrepresented, requiring the magistrate to explain the law in simple, accessible language and to record these explanations clearly in the proceedings.

In casu the learned magistrate said,

“Court is now giving you an opportunity to make submissions in your defence

case. You may elect to give evidence under oath or without taking oath.

Evidence under oath carries more weight than evidence given without taking

oath. You may decide to call witnesses if you have witnesses. You may produce

exhibits if you have exhibits.

Q. Did you understand explanation?

A. Yes.

Q. Witness, do you wish to give evidence under oath?

A. Yes.”

The explanation given by the magistrate in this case is procedurally and substantively inadequate, particularly in light of the requirements set out in Section 198(6)– (9) of the CPEA. These provisions impose a clear duty on the court to ensure that an accused person, especially one who is unrepresented, fully understands their rights and the implications of giving or declining to give evidence in their defence.

Firstly, the magistrate’s explanation fails to comply with Section 198(6)(b), which requires the court to inform an unrepresented accused of the provisions of the proviso to subsection (8), subsection (9), and section 199(1). These provisions are critical because they explain the order in which defence evidence may be presented, the possibility of being questioned even if the accused declines to testify, and the legal implications of remaining silent. The magistrate’s statement does not explain their significance. As a result, the accused was not properly informed of the procedural framework governing the defence case.

Secondly, the statement that “evidence under oath carries more weight than evidence given without taking oath” is misleading and prejudicial. It suggests that the court will automatically give greater credibility to sworn testimony, which may pressure the accused into testifying under oath without fully understanding the consequences. The law does not prescribe a hierarchy of credibility based solely on whether evidence is sworn or unsworn; rather, the weight of evidence depends on its substance, consistency, and credibility. This kind of statement risks undermining the accused’s right to make an informed and voluntary decision about whether to testify and how to do so.

Thirdly, the explanation is overly simplistic and lacks the depth required to guide an unrepresented accused through a complex and consequential stage of the trial. The magistrate merely stated that the accused may call witnesses or produce exhibits, without explaining how this should be done, or the order in which it should be presented. There is no guidance on the accused’s right to remain silent, the potential for adverse inferences, or the role of the prosecutor and the court in questioning the accused if he chooses not to testify. This perfunctory approach fails to meet the standard of fairness required in criminal proceedings, particularly where the accused is navigating the trial process without legal representation.

The following proceedings were recorded during the defence case.

“WITNESS SWORN.

Q. Do you remember defence outline?

A. Yes.

Q. You abide by it?

A. Yes.

Q. You are to get with complaining.

A. Yes,

Q. you're striking with a beer bottle,

A. no.

Q. how did you assault complaining?

A. I used opinions.

Q. How many times?

A. Four times.

Q. In your defence, are you indicating that you were retaliating or you were

fighting?

A. Yes, we were fighting.

Q. Why? Why did you then use an empty beer bottle?

A. He was assaulting me.

Q. Where were you being assaulted?

A. On the face.

Q. He committed the offense and you have no defense.

A. I was also injured.

Q. Were medicals examined?

A. No.

Q. Any proof that you assaulted him?

A. No.

Q. Did you report the matter?

A. No. I guess personally,

Q. if no defense, he committed the offense?

A. They're just making vague lines. So no

DEFENSE CASE CLOSES.”

The trial magistrate’s handling of the defence case reflects a serious departure from the procedural safeguards mandated under sections 198(6) to (9) and 199(1) of the CPEA. These provisions impose a clear duty on the court to ensure that the accused, especially when unrepresented, is properly guided through the transition from the prosecution’s case to the defence. That duty was not discharged here.

Firstly, the record does not show that the accused was asked whether he intended to lead evidence or testify in his own defence. Instead, the magistrate merely asked whether he abided by his defence outline and immediately began questioning him. This bypasses the critical inquiry required at the close of the prosecution’s case, which is meant to inform the accused of his rights and options, including the right to remain silent. The absence of this inquiry is not a trivial omission. It undermines the fairness of the proceedings and the accused’s ability to make an informed decision about his defence.

Secondly, even more troubling is the fact that the magistrate proceeded to question the accused without first establishing whether he had elected to testify. There is no indication that the prosecutor was given an opportunity to cross-examine the accused. This constitutes a gross procedural irregularity. Cross-examination is a cornerstone of adversarial justice, allowing the prosecution to test the credibility and consistency of the accused’s testimony. Its absence not only violates the accused’s right to a fair trial but also deprives the court of a balanced and reliable evidentiary process, thereby compromising the integrity of the trial.

Thirdly, the questions and answers recorded are incoherent and poorly structured. They also reflect a serious breakdown in communication. Phrases like “you are to get with complaining” and “I used opinions” suggest either transcription errors or a lack of clarity in the questioning. This not only makes it difficult to follow the accused’s version of events but also raises concerns about whether the accused understood the questions being put to him. In cases involving unrepresented accused persons, the magistrate bears a heightened responsibility to communicate in clear, accessible language and to ensure that the record accurately reflects the proceedings. The above failures amount to a miscarriage of justice and call into question the reliability of the findings made at the close of the defence case.

As demonstrated above, the record of proceedings in this matter is deeply problematic and reflects a concerning lack of procedural rigour, clarity, and professionalism. Several critical flaws are evident, both in the structure and substance of the record, which collectively undermine the fairness and reliability of the trial process. Despite the glaring deficiencies enumerated above, the trial magistrate signed off on the record after transcription, with her signature appearing just above that of the transcriber. By doing so, she effectively endorsed the record as a true and accurate reflection of the proceedings she conducted, implying that she had proofread and approved its contents.

As stated in para 1 above, a court record should serve as a precise and reliable account of what transpired during trial. Instead, this one reads as a fragmented and poorly constructed narrative. Moreover, it lacks a clear and logical sequence of events in many of its parts, making it difficult to discern who is speaking, what is being asked, and how the responses relate to the charge. Such deficiencies severely compromise the integrity of the proceedings and the ability of a reviewing court to assess the fairness and legality of the trial.

In some parts, the role of the court is confused with that of the parties. The record frequently blurs the line between judicial inquiry and cross-examination. In light of these deficiencies, it is evident that the trial magistrate requires urgent and comprehensive retraining, not only in courtroom procedure and evidentiary handling but also in legal writing and English language proficiency. The ability to produce a coherent, accurate, and legally sound record is fundamental to the role of a judicial officer. Without it, the rights of the accused, the credibility of the proceedings, and the integrity of the justice system are all placed at risk. This record, regrettably, falls far below the standard expected and this issue must be addressed through appropriate judicial capacity-building measures.

The cumulative deficiencies in the entire record of proceedings reveal a troubling lack of procedural and substantive knowledge on the part of the trial magistrate. The record reflects a systemic failure to observe basic safeguards, including the rights of unrepresented accused persons, and is marred by incoherent reasoning, and poor record-keeping. These shortcomings not only compromise the fairness of proceedings but also undermine public confidence in the administration of justice. It is evident that the magistrate is not sufficiently bothered by the substandard work submitted for review, which further raises concerns about her fitness to continue presiding over cases.

In light of these issues, it is recommended that the magistrate undergoes urgent and comprehensive retraining. This should encompass courtroom procedure, criminal adjudication, recording of evidence, and the correct interpretation and application of sentencing law. Equally critical is targeted instruction in judgment writing and English language proficiency. Judicial officers are expected to communicate decisions with clarity and accuracy. The ability to produce coherent and well-reasoned judgments is not optional. It is fundamental to the role of a judicial officer. Judicial capacity-building is not merely remedial in this case. It is imperative.

In view of the foregoing, the proceedings cannot be certified as being in accordance with real and substantial justice. Accordingly, it is ordered that: -

The conviction of the accused is hereby quashed.

The sentence of a fine of USD 310 or, in default of payment, seven months’ imprisonment is hereby set aside.

The accused shall be entitled to a refund of the fine that may have been paid.

The Prosecutor-General in the exercise of her discretion is at large to institute fresh proceedings. Should a fresh prosecution be instituted, a different magistrate shall preside over the trial.

The judgment must be brought to the attention of both the Chief Magistrate and the Prosecutor - General.

Muremba J: ………………………………………………………..

Chitapi J Agrees: …………………………………………………..