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This article participates on the following special index pages:
Treason charges against Munyaradzi Gwisai & others - Index of articles
Violence, recrimination and arrests after policeman's death in Glen View - Index of articles
Update on (1) Glen View 29 Murder Trial; (2) State v Gwisai and
Others - Court Watch 5/2012
Veritas
March 15, 2012
Update
on (1) Glen View 29 Murder Trial; (2) State v Gwisai and Others
State
v Solomon Madzore and 28 Others: the Glen
View 29 Murder Trial
Adjournment
to 15th March
Although due
to start on Monday 12th March, the trial did not in fact commence.
Instead the court heard a defence application for the trial to be
postponed for three weeks, to 2nd April. So the charges have not
been formally put to the accused and they have not yet pleaded.
The main charge is murder and there is an alternative charge of
public violence. The offence of murder carries the death penalty.
The maximum penalty for public violence is a fine of $2 000 or imprisonment
for 10 years or both. [See Court
Watch of 4/2012 of 9th March for background.]
Why
the trial is in the High Court
As the offence
of murder is punishable by the death penalty, and as only the High
Court has the power to impose the death penalty, all murder trials
have to be heard in the High Court.
Composition
of the trial court
The trial court
consists of the presiding judge, Justice Chinembiri Bhunu, and two
assessors. All questions of law and admissibility of evidence arising
in a criminal trial are decided by the judge alone, but questions
of fact are decided by a majority of the three members of the bench.
This means that when it comes to reaching a verdict the assessors
can actually overrule the judge on questions of fact – this
does not happen often, but is not unknown. If a trial ends with
a conviction, the judge may consult with the assessors when it comes
to imposing sentence, but it is the judge alone who makes the final
decision. [Zimbabwe does not have trial by jury. Trial by jury in
this country was abolished before Independence after having fallen
into disuse in the limited range of criminal cases in which it was
open to the accused to elect a jury trial.]
[Note: Justice
Bhunu presided over the high profile criminal trial of MDC-T’s
Senator Roy Bennett in 2009 and 2010. Mr Bennett was acquitted by
the judge at the close of the State case.]
Defence
application for postponement
Lawyer Charles
Kwaramba, applying for a postponement on behalf of the accused,
explained why it had not been possible for the defence team to complete
the outline of the defence case that must by law be lodged with
the court three days before the trial. It was only eleven days since
the 1st March, when the accused had been indicted for trial and
the State’s case outline and its list of State witnesses had
been provided. All the accused had then been committed to prison,
where it had been extremely difficult to conduct the interviews
with each of them that were essential to the formulation of the
defence outline. Part of the problem had been that prison officers
had insisted on remaining within earshot during the interviews that
had been conducted, despite the rule requiring lawyer-client interviews
to be within sight of prison officials, but out of hearing range.
And prison rules and bureaucracy limited the time that could be
spent talking to the accused. The prosecutor argued that the postponement
should be for one week only.
Adjournment
to 15th March
Justice Bhunu
adjourned proceedings until Thursday 16th March at 10 am at the
High Court [Court A] for further argument over a postponement and
a ruling on when the trial will start. Before the resumption of
the hearing on postponement, the lawyers on both sides were asked
to make further submissions to him in writing.
Bail
application
On Thursday
16th Justice Bhunu will also deal with the defence application for
the accused to be granted bail for the duration of the trial. By
then he will have had time to read through the papers already filed
by both defence and State for and against this application. The
application, after being postponed several times, was due to be
dealt with by Justice Chatukuta last Friday but instead of granting
or refusing bail she decided it would be more appropriate for the
application to be dealt with by the trial judge before the trial.
[Reminder: 26 of the 29 accused were actually on bail for varying
periods until they were ordered back to prison when committed for
trial at the magistrates court on 1st March. See Court Watch 4/2012
for details.]
State
v Munyaradzi Gwisai and 5 Others
Judgment
expected 19th March
Court
Watch 2/2012 traced this case
from the initial arrests on 19th February 2011 up to the defence
application for the discharge of the accused at the close of the
State case on 1st February. The accused, all of whom have said they
were beaten and tortured, are all social justice and human rights
activists:
When the police
first took the accused to court after their arrest, the charge was
treason; but this was later reduced to a charge of inciting public
violence with an alternative charge of conspiracy to commit public
violence. [Note: As the offence of treason carries the death penalty,
a charge of treason would have had to tried in the High Court, but
a charge of public violence can be dealt with in the magistrates
court, and the trial was duly held at the magistrates court in Harare.]
Developments
since Court Watch 2/2012 are as follows:
Court
puts accused on their defence
On 15th February
the court dismissed the defence application for the accused to be
discharged at the close of the State case. The regional magistrate,
Kudakwashe Jarabini, ruled that the evidence presented by the State
called for an answer by the defence.
Defence
case
The defence
case was then presented over three days – 27th to 29th February.
All the accused gave evidence denying plotting public violence or
an uprising against the Government. After hearing from the prosecutor
and the defence lawyer Alec Muchadehama, the regional magistrate
asked them both to make written submissions and said he would deliver
judgment on Monday 19th March.
Written
submissions delivered
The written
submissions have been lodged with the court. The State’s submissions
went in first and the defence reply was lodged early on 13th March.
Judgement
due
19th March remains
the date set for the delivery of judgment.
Mr Gwisai’s
civil claim for damages
In October last
year Mr Gwisai commenced civil proceedings against the Government
claiming a total of $300 000 damages based on his treatment by the
police at the time of his arrest and afterwards. He alleges unlawful
arrest and detention, assault and torture. The Government disputes
the claim. The next stage in the proceedings will be the holding
of a pre-trial conference on a date still to be fixed.
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