THE State V Lovemore Kurotwi AND Dominic Mubaiwa AND JOHN Tichaona Muhonde AND Gloria Mawarire AND MARK Tsomondo

HH 41-11
                                                                              CRB 35-39/11



THE STATE
versus
LOVEMORE KUROTWI
and
DOMINIC MUBAIWA
and
JOHN TICHAONA MUHONDE
and
GLORIA MAWARIRE
and
MARK TSOMONDO


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 7 February and 8 February 2011


Mrs F Ziyambi and C Mutangadura, for the State
G Chikumbirike, for the first accused
L Uriri and Mr. Sahle, for the 2nd accused
J Samukange, for the third and fourth accused
Mrs Matshiya, for the fifth accused


       BHUNU J:        The five accused persons were jointly indicted for trial in the High
Court on 10 January 2011 on a charge of fraud. At the commencement of their trial the
prosecutor advised the court that she was withdrawing charges against the third, fourth and
fifth accused before plea. Their respective legal practitioners accepted the withdrawal of
charges against their clients before plea.
       Counsel for accused one and two however vigorously objected to the timing of the
withdrawal of charges against the three accused persons before the charges had been read.
Relying on ss 137 and 168 of the Criminal Procedure and Evidence Act [Cap 9:07] they
argued that the case became pending in this court at the moment the charges were given to the
registrar. That being the case the withdrawal entailed an amendment of the original charge.
Their clients were now required to plead to a charge in which their co-accused now appear as
witnesses against them. They submitted that the withdrawal be done after the original charge
upon which the accused were indicted for trial has been put to all the five accused persons.
Doing otherwise will constitute a procedural irregularity.
2
HH 41-11
CRB 35-39/11

        In response State counsel pointed to s 76 {4) (c) of the Constitution which provides
that:

        “4 (c) The Attorney General shall have power in any case in which he considers it
               desirable so to do to discontinue at any stage before judgment is delivered in
               any criminal proceedings he has instituted…”

        Subsection (6) goes on to provide that the powers of the Attorney General under subs
(4) (c) shall be vested in him to the exclusion of any other person or authority. Thereafter subs
(7) seeks to protect the Attorney General from interference by any person or authority
including the courts. It provides that in the exercise of his powers under subs (4) the Attorney
General shall not be subject to the direction of any person or authority.
        It is clear that the section clothes the Attorney General with an unfettered absolute
discretion to withdraw criminal proceedings he has instituted at any stage of the proceedings.
It thus follows that once the Attorney General has decided to exercise his discretion under
section 76 (4) (c) of the Constitution no person or authority including the courts can question
his decision in this respect.
        In the case of S v Chari 1998 ZLR 180 the trial magistrate refused to grant the
prosecutor’s bid to withdraw the charge against the accused and proceeded with the trial at the
bewilderment of the prosecutor. This prompted BLACKIE J to remark that:

         “…if the prosecutor persists in the withdrawal of the case, the magistrate must accept
        that decision. For him to behave as he did in this case is a grave error.”


        The above remarks apply to all courts with equal force. It does not matter whether or
not the withdrawal is before or after plea.
        It is trite that the Constitution is the supreme law of the land. It is the mother of all
laws. It takes precedence over any other subordinate laws. That being the case, it is not
necessary to consider the provisions of ss 137 and 168 of the Criminal Procedure and Evidence
Act [Cap 9:07] save to observe that they do not bar the Attorney General from exercising his
powers under s 76 (4) (c) of the Constitution.
        The prosecutor was therefore well within her constitutional rights when she decided to
withdraw charges against the third, fourth and fifth accused persons at this point in time. In
terms of the Constitution no person, authority or court can question the exercise of that
                                                                                             3
                                                                                     HH 41-11
                                                                                  CRB 35-39/11

discretion nor can any one give directions to the Attorney General or his representative
concerning the timing of the exercise of that power.
       I therefore find that there is no merit in the objection against the withdrawal of charges
against the three accused persons. The objection is overruled and it is accordingly ordered that
the application for withdrawal of charges against the third, fourth and fifth accused persons be
and is hereby granted.




The Attorney General’s Office, the State legal practitioners
Chikumbirike and Associates, 1st defendant’s legal practitioners
Kantor & Immerman, 2nd defendant’s legal practitioners.
Byron Venturas, 3rd and 4th defendant’s legal practitioners.
Mutetwa and Nyambirai, 5th defendant’s legal practitioners.