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Judge blasts magistrate’s ‘arbitrary’ ruling, orders retrial

23/03/2017 00:00:00
by Staff reporter

A High Court judge has hit out at a magistrate for gross incompetence after he irregularly acquitted a prison officer who was facing charges of assisting an inmate to escape.

The prison officer, Shepherd Chinhara, was arrested in April last year and charged with assisting Kudakwashe Nyashanu, a prisoner at Mutimurefu Prison in Masvingo, to escape.

Nyashanu, who was later apprehended, said Chinhara had helped him to escape. In a sworn affidavit then, Nyashanu, who is serving time for robbery, said he had managed to escape from the prison hiding in the boot of Chinhara's vehicle.

Chinhara was brought before a Masvingo magistrate, Oliver Mudzongachiso, who acquitted him in December after Nyashanu who was the state's key witness expressed discomfort in testifying against Chinhara.

However, the matter was brought for a review before Justice Amy Tsanga, following concerns raised by the Zimbabwe Prisons and Correctional Services (ZPCS) over Mudzongachiso’s ruling.

In her ruling delivered early this month, Justice Tsanga said Mudzongachiso had committed gross irregularities and that Chinhara's case should be brought for retrial before a different magistrate.

"The magistrate committed gross procedural irregularities in dismissing a key witness before the witness testifies and before the prosecution had closed its case. The magistrate acted arbitrarily, which led to the miscarriage of justice in that an otherwise guilty person was acquitted without any legal basis.

"The witness in this case who the magistrate tried to shield from giving evidence...was competent as a witness. It would appear that the witness's evidence would in fact have been necessary to assist the court in determining the truth of what actually happened regarding the prisoner's escape," Justice Tsanga said.

The judge said the actions of the magistrate militated against the concept of judicial impartiality.

"The appropriate remedy in this case is to set aside the proceedings that were held before Magistrate Mr. Oliver Mudzongachiso and that the matter be tried. The matter is remitted back to the magistrate's court for a trial before a different magistrate," said the judge.


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