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Bhunu acquits 21 of Glen View 29-murder trial accused – Court
September 25, 2013
Bhunu acquits 21 of Glen View 29 murder trial accused
19th September Justice Bhunu acquitted 21 of the 29 persons accused
of murdering a policeman, in what has come to be known as the
Glen View Murder Case, from the site of the alleged murder. The
judge was delivering his decision on the defence’s application
for the discharge of all 29 accused at the end of the State case
in this long-running trial. From the first arrests and charges to
this judgment has taken over 27 months, of which over 17 have, extraordinarily,
been devoted to the High Court trial, largely because there have
been numerous lengthy adjournments. Among those acquitted was Solomon
Madzore, the MDC-T Youth Assembly chairperson, who was elected as
the MDC-T member of the National Assembly for Dzivaresekwa in the
31st July elections. He was arrested, detained in custody and prosecuted
in spite of having a confirmed alibi, as were some of the others
who had alibis. [See list of acquittals below].
In his judgment,
the judge refused to discharge 7 of the accused, ruling that the
State had made out a prima facie case against them. Their trial
will continue on a date to be fixed.
of a death certificate, the judge withheld a ruling in respect of
the accused Rebecca Mafukeni, who died
on 12th August. [See note at end of bulletin].
Mutedza died while on duty on the afternoon of 29th May 2011 after
a scuffle with members of the public at Glen View 3 suburban shopping
centre near Harare where a group of MDC-T youths were participating
in an MDC-T “T-shirt visibility day”, braaing meat and
drinking beer at the Munyarari nightclub
The State case
was summarised as follows by Deputy Chief Justice Malaba when some
of the accused appealed to the Supreme Court for bail in February
2012: Mutedza and other police officers entered the nightclub to
tell the leaders that the gathering had to disperse, because it
had not been authorized by the police. The police said that the
group of youths then shouted “matatya ngaurawe”, which
when literally translated means: “kill the frogs”. The
police claimed they were then attacked with various missiles including
stones, bricks and bar stools and forced to run out of the nightclub,
and that Mutedza mistook a Nissan Hardbody motor vehicle allegedly
being driven by Phineas Nhatarikwa, one of the accused, for the
police vehicle and ran to it for cover. When the deceased tried
to open the door of the car to seek refuge, Nhatarikwa is alleged
to have driven away from the deceased for about 4 metres. The State
alleged that was when Mutedza was struck on the head with a half
brick and fell to the ground. Then a mob of youths set upon him
kicking and trampling his body until he lost consciousness and died.
The State further alleged that some of the youths jumped into the
Nissan Hardbody, and drove away from the scene at high speed. Cynthia
Manjoro [one of those now acquitted, who in fact had an alibi –
see below] was also alleged to have driven her vehicle away from
the scene carrying some of the youths who had attacked the deceased.
Note: This State
version of the incident was challenged by the defence during cross-examination
of State witnesses.
all MDC-T members or office-holders, were arrested over the next
seven months, many in a blitz in the suburb within days of the incident,
the last in January 2012.
There have been
many bail applications in this case, both before and during the
trial. By the time the accused appeared in the magistrates court
on 1st March 2012 to be committed for trial at the High Court, all
but 2 of them of them were free on bail, including 7 who had been
granted bail by the Supreme Court only 8 days earlier on 20th February
2012. But their committal for trial entailed all 29 being returned
to prison. Further bail applications followed as the trial progressed,
with one accused succeeding in October, two more, including Solomon
Madzore, in November, and another 21 in mid-December. The other
5 were denied bail and remained in custody. Ironically only 3 of
the 5 who were denied bail are amongst the 7 who must now stand
trial. [See below for list of names of those standing trial.] One
of the 5 died in custody, and Simon Mapanzure, who had been in prison
since committal for trial, now stands acquitted by the same judge
who denied him bail in December 2012, and again in February this
year on the ground that the evidence heard by the court so far had
“strengthened” the State case against him. [Covered
Watches 4/2012 of 9th March 2012 and 9/2013
of 10th July 2013]
Bhunu’s criticism [see below] of police and prosecution, for
continuing with the case against those accused whose alibis had
been confirmed by police investigations, necessarily also calls
into question the State’s persistent opposition to their release
High Court trial
The trial started
on 2nd April 2012. It has not been continuous. Unusually, it has
frequently been interrupted by adjournments, some lengthy. The prosecution
closed the State case on 11th March 2013 and the defence gave notice
it would apply for the discharge of all 29 accused. Court Watch
9/2013 of 10th July took our coverage of this case to the point
where the judge, on 12th June, 2013, had reserved judgment indefinitely
after receiving written submissions from defence and prosecution
lawyers, and finally hearing oral argument. [Covered in detail in
Court Watches 4 and 5/2012 of 9th and 14th March 2012; and 6, 9
and 10/2013 of 30th May, 10th and 17th July 2013]
initially said he would hand down his decision on 17th September
but this had to be postponed to 19th September because the judges
were attending the official opening of Parliament on that day.
In his judgment,
the judge analysed each accused person’s position separately
in order to determine whether the State evidence had proved a prima
facie case against him or her or, to use the words of section 198(3)
of the Criminal
Procedure and Evidence Act, whether the prosecution had produced
“evidence that the accused committed the offence charged …
or any other offence of which he might be convicted thereon”.
In 21 cases, the judge’s conclusion was that there was no
evidence implicating the accused in Mutedza’s death or, in
most cases, placing them at the scene. They were therefore found
not guilty and discharged.
Bhunu decided that there was sufficient evidence against 7 of the
accused to constitute a prime facie case. He therefore refused to
discharge them. When the trial resumes, the defence lawyers will
have an opportunity to present the defence case and call defence
witnesses, including the accused themselves.
As Justice Bhunu
pointed out in his judgment, the refusal to discharge the remaining
7 accused does not mean that they have been, or will inevitably
be, found guilty. The standard of proof for conviction is different
from and more demanding that the prima facie case standard applied
when an application for discharge is made at the end of the State
case. It is only after the close of the defence case that the court
will decide whether or not, on the evidence as a whole, the State
has proved its case beyond reasonable doubt.
criticism of police - A noteworthy feature of the judgment is the
criticism of the police and prosecution for “unprofessional”
conduct in persisting with the prosecution of some of the accused
even after police investigations had confirmed their alibis and
cleared them of involvement in the alleged murder.
was widespread criticism at the time of the nature of the police
response to Inspector Mutedza’s death in the days after the
incident. Observers and residents described the Glen View area as
being like a war zone with an unofficial curfew, a heavy police
presence and wholesale random arrests. Police Commissioner-General
Chihuri, in a speech read on his behalf at the deceased’s
funeral, talked of “police officers being decimated by uncouth
opposition political elements in a naive and imbecilic attempt to
make our country ungovernable” and warned that “Those
who wish to live by the sword must be prepared to die by the sword”.
The MDC-T has consistently labelled the arrests of known MDC-T activists
in this case as random, indiscriminate and baseless.
- The State
case was that all 29 accused were part of the group of people
who attacked the deceased and caused his death. It was therefore
necessary for the State to lead evidence that each of the accused
had been present at the scene and took part in the attack on the
deceased. Most of the 21 who were discharged raised an alibi defence,
i.e., said that they had been elsewhere at the relevant time.
In essence the judge decided that the State had failed to produce
evidence of their presence at the scene. The accused who were
acquitted on this basis are:
Shumba worked at the nightclub where the accused were said to
have been drinking and was at the scene of the crime because that
is his place of employment. The judge ruled that there was no
evidence linking him to the incident or to the death of the deceased.
Takaidzwa and Stanford Maguro - There was no credible evidence
that these accused were implicated in the offence.
Manjoro’s car had been at the scene of the crime and police
said it had been used as a getaway vehicle. But at the time of
the incident she was at church and her boyfriend Darlington Madzonga
was using her car. Madzonga fled before he could be arrested and
remains a fugitive from justice. A State witness gave evidence
confirming Ms Manjoro’s alibi and said police had told him
she was arrested and held as bait, to induce Madzonga to give
himself up. Justice Bhunu severely criticised not only the police
and prosecution for proceeding against her when it was known her
alibi was genuine, but also the fugitive Madzonga for abandoning
her to her fate.
Maengahama, Linda Musiyamhanje, Tafadzwa Billiat, Simon Mapanzure,
Zwelibanzi Dube and Simon Mudimu were implicated only by inadmissible
hearsay evidence of police informers. State witnesses listed to
testify against them were not called. Augustine Tenganyika, Francis
Vambai and Nyamadzawo Gapare were not shown to have been anywhere
near the scene of the crime. They claimed they had been elsewhere.
- Oddrey Chirombe
said he was not at the scene of the crime but at his girlfriend’s
house in Mbare, and only returned to Glen View well after the
incident. here was no evidence of his presence at the crime scene.
Moyo and Abina Rutsito were together on 29th May, but were nowhere
near the scene of the crime. Their alibi was that were in a commuter
omnibus that was diverted by Zanu-PF youths.
- Tendai Maxwell
Chinyama, Memory Ncube, Kurina Gweshe, Solomon Madzore and Lovemore
Taruvinga Magaya also raised alibis which had been confirmed by
police investigations. The judge rapped police for nevertheless
persisting with the prosecution. For instance, Solomon Madzore
claimed that at the relevant time he was with his pregnant wife
at her doctor’s rooms, and the doctor confirmed this to
still on trial
still on trial are: Tungamirai Madzokere, Yvonne Musarurwa and Last
Maengahama, the 3 still in prison as they had previously been denied
bail [see above]; and, out on bail, Lazarus Maengahama, Phineas
Nhatarikwa, Edwin Muingiri and Paul Rukanda.
The trial will
resume for presentation of the defence case on a date to be notified.
one of the five accused who were denied bail and had been in prison
on remand, died on 12th August at Parirenyatwa Hospital. Her health
deteriorated rapidly while she was in custody. She lost her sight
and suffered from meningitis. Court applications filed by Ms Mafukeni’s
lawyers to move her from Parirenyatwa Hospital to a private hospital
were dismissed. She was buried on 14th August at Warren Hills Cemetery.
Rebecca joined the MDC when she was 15 years old and still a student.
She was 29 years old at the time of her death.
website or by email from Veritas at addresses below]
on bail by Deputy Chief Justice Malaba [13th February 2012] and
Justice Bhunu [20th February 2013].
- Past Court
Watches referred to in this bulletin.
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