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Belated convictions for political violence - Court Watch
Veritas
February 23, 2012
This bulletin
outlines two cases involving deaths arising from inter-party political
violence – both of which were eventually heard and resulted
in convictions in the High Court. The first case took an extraordinarily
long time to come to trial – just under 10 years from original
arrest to trial. The second case took over two years from arrest
to trial.
Killings
in 2002 - Convictions in 2012
Background
The run-up to
the 2002 Presidential election was characterized by many violent
clashes between supporters of different political parties. One such
incident, in Zaka district in Masvingo province in March 2002, led
to the deaths of two MDC supporters.
Arrest
and detention
The three accused,
one of them the ZANU-PF Zaka district political commissar Muchakata
Mupfiga, were arrested in 2002 and initially remanded in custody.
Released
on bail
After six weeks
they were freed on bail and remained on remand for 5 years until
further remand was refused by the magistrates’ court, as a
result of which they were discharged and remained at liberty until
late 2011.
Delays
in the hearing of the case
There has been
no explanation why the State did not have the case ready for so
many years. For the first 5 years the accused were on remand having
been given bail. [In murder cases it is unusual to grant bail because
of the seriousness of the crime and risk of flight or intimidation
of witnesses.] For the next five years they were at liberty in spite
of having been accused of murder, because the state did not proceed.
Such unexplained delays are inexcusable especially in serious cases
as they may result in witnesses becoming unavailable or forgetting
important details of events – quite apart from opening the
door to nullification of proceedings on constitutional grounds [see
below].
Case
revived, accused indicted
The State revived
the case in 2011 and in September the accused were summoned to the
magistrates court and indicted for trial before the High Court on
two charges of murder. They were then re-detained and remained in
custody awaiting trial.
Trial
The trial took
place at the High Court circuit in Masvingo earlier this month.
Evidence established that the deceased, both MDC activists, had
been accused of stealing cattle from a ZANU-PF base commander. Mupfiga
led a group of militia in storming the first victim’s homestead
and force-marching him back to their base. There he died after being
comprehensively assaulted over a period of three days: kicked, punched,
hit with bricks, knobkerries, sjamboks and pieces of wood, stripped
and his back burnt with burning plastic. The second victim was also
seized from his home and subjected to similar assaults at the camp
over a period of two days ; he, too, died as a result.
Conviction
and sentence
Mupfiga was
acquitted of murder but convicted on two counts of the lesser crime
of culpable homicide [newspaper reports were wrong in saying that
he was convicted of murder]. His two accomplices were convicted
on one count of culpable homicide. Mupfiga was sentenced to 12 years’
imprisonment, 2 of them suspended on condition of good behaviour.
The others were each sentenced to 5 years’ imprisonment, one
year suspended. [Note: The difference between murder and culpable
homicide lies in the mental state of the accused. Murder is causing
the death of another person intending to kill, or recklessly continuing
a course of conduct despite realising that it may cause death the
death of that person. Culpable homicide is causing death negligently
failing to realise that one’s conduct may cause death; or
causing death realising that one’s conduct may cause death,
but negligently failing to guard against that possibility. Murder
can be punished by the death penalty; the maximum penalty for culpable
homicide is life imprisonment. Criminal
Law Code, sections 47 and 49.]
Judge condemns
lawlessness, urges acceptance of diversity In passing the court’s
judgment Justice Karwi:
- condemned
the accuseds’ conduct in usurping the powers of the police
and causing lawlessness in the area during the election period
- urged people
to accept political diversity and put an end to political violence.
- Convicted
persons to appeal to Supreme Court
Mupfiga and
his two accomplices plan to challenge the validity of the trial
in an application to the Supreme Court, claiming infringement of
their constitutional right to be tried within a reasonable time
[Constitution, section 18].
2009
Gokwe Murder
Background
On 21st March
2009, Moses Chokuda, the MDC Gokwe District organizing secretary,
was on his way to attend a MDC council meeting, when he was seized
at the Gokwe Business Centre, forced into a white ZANU-PF vehicle
and driven away. His lifeless body was found abandoned in the bush
two days later, 23rd March. He had sustained serious injuries. A
medical report gave the cause of death as severe cervical spinal
injury. It later emerged that Chokuda had died on the night of 22nd
March after a severe beating at the homestead of headman Esau Ndokwane
in Nemangwe.
Arrest
and detention
The six accused
were only arrested on 2nd June 2009, almost two months after the
death of Mr Chokuda: Farai Machida [son of Midlands Governor Jason
Machaya], Edmore Gana [a member of the Zimbabwe National Army [ZNA]
and ZANU PF Midlands province youth secretary and son of ZANU-PF
Gokwe District coordinating chairperson], his brother Bothwell Gana
[also a ZNA soldier], Abel Maphosa, Obert Gavi and Tirivashoma Mawadze
[the two last-mentioned both ZNA lance corporals]. They were soon
released on bail.
Delays
in the bringing case to court
The case lay
unattended and unheard by the courts for the rest of 2009, all of
2010 and into 2011. Moses Chokuda’s body continued to lie
in the Gokwe District Hospital mortuary – his family had refused
to bury him until restitution and an open and public apology had
been given for his killing; full disclosure made of the circumstances
and motive leading to his death; and the case heard by the courts
and justice done. On 26th April 2011, Chokuda’s father, Tawengwa
Chokuda, wrote to the Attorney-General pleading for the State to
bring the case before the courts so that the family could have closure.
Accused
indicted for High Court trial
In August 2011
the accused were taken before the magistrate’s court and indicted
for trial for murder at the next High Court circuit in September.
The delay that had occurred was explained by reference to witnesses
having been unavailable and failure to complete the necessary paperwork.
The accused were remanded in custody and taken to prison to await
trial. On 16th September Machaya and three of the other accused
were released on bail by Justice Musakwa, despite State opposition
to bail being granted.
Trial
On 21st September
the case began before Justice Mathonsi and two assessors. The accused
pleaded not guilty. All the accused were legally represented. During
the six-day trial it emerged that Chokuda had been accused of stealing
from Machaya’s supermarket and assaulted by all the accused.
Conviction
and sentence
On 26th September
Justice Mathonsi handed down the court’s verdict. Farai Machaya,
Abel Maphosa, Bothwell Gana and Edmore Gana were found guilty of
murder and sentenced to 18 years in prison. Obert Gavi and Tirivashoma
Mawadze were acquitted of murder but found guilty of the lesser
offence of assault and sentenced to 12 months in prison; they were
found to have assaulted Chokuda at the business centre before the
later, fatal, assault.
Judge
condemns lawless behavior by accused soldiers
Justice Mathonsi
told the four accused ZNA members that they had chosen to behave
like privately hired soldiers and that such a flagrant disregard
of the law would not be tolerated
Judge
criticizes police conduct of case
In his judgment
Justice Mathonsi also criticized the police investigation of the
case, referring to evidence heard from State witnesses that they
had given the police vital information which had been omitted from
their formal witness statements produced in court: “we cannot
exclude the fact that the police attempted to downplay what happened
in favour of the defence. The police omitted vital evidence which
was led by State witnesses and this is not acceptable.” Referring
to crucial events related in court by the witnesses, the judge said:
“All this was missing from their statements which they were
made to sign without reading them.”
Compensation
and traditional restitution paid to Chokuda family
After the trial
Provincial Governor Machaya said he accepted the court’s verdict
on his son, and negotiations commenced between the Machaya and Chokuda
families over compensation for the death of Moses Chokuda. The negotiations
were facilitated by Chief Njele. Mr Machaya took full responsibility
for compensating the Chokuda family, saying that the other accused
had only become involved because they were assisting his son. He
would pay all the restitution required by the Chokuda family for
his son and the co-accused. On 16th October 2011 the families reached
an agreement. Mr Machaya agreed to compensate the Chokuda family
with $15 000 and 35 head of cattle, 20 of which were delivered on
the day with the remainder to come at a later stage. The Governor
also agreed to finance all the arrangements for the funeral of Moses
Chokuda. The Chokuda family accepted the compensation and apology.
[Comment: A criminal conviction a does not preclude separate civil
proceedings for compensation or other redress for the wrong committed,
whether the claim is under customary law – as in this case
– or under the general law of Zimbabwe. Under the Customary
Law and Local Courts Act, customary law enjoys wide application,
especially, but not exclusively, in disputes between indigenous
Zimbabweans. It is the only law applied in the “local courts”
– courts of chiefs and headmen – which are part of the
general court system. Other courts apply customary law in appropriate
cases.]
Burial
after two and a half years
Moses Chokuda
was finally buried
at Chipere village, Gokwe, on 22nd October 2011, giving the Chokuda
family closure and peace nearly two and a half years after his death.
He was 25 at the time of his death and was survived by his widow
and two year old son.
Comment
In both cases
the facts suggest a reluctance on the part of the police to pursue
this sort of criminal case. This has been a perennial MDC complaint
against the police. The GPA
records the commitment of the three GPA parties to “ensuring
that all state organs and institutions strictly observe the principles
of the rule of law and remain non-partisan and impartial.”
Bringing perpetrators to justice regardless of political affiliation
is essential if Zimbabwe is to throw off its long-standing reputation
for impunity for the powerful. The police need to take Justice Mathonsi’s
criticism in the Machaya case seriously. And it is hoped that the
Attorney-General’s Office and the justice system will play
their part in ensuring that criminal cases are dealt with expeditiously
and with even-handed justice.
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