By Mary Taruvinga, Senior Reporter
HIGH Court judges of appeal, Justices Benjamin Chikowero and Rodgers Manyangadze have dismissed an appeal against both conviction and sentence by former cabinet minister Petronella Kagonye, ruling that she was properly jailed.
Kagonye was found guilty of theft of trust property and caged three years after she converted laptops donated by the Postal and Regulatory Authority of Zimbabwe (POTRAZ) to personal use.
Twelve months of her sentence were suspended on conditions of good behaviour while further eight months were suspended on condition that she restitutes POTRAZ US$10,000 leaving an effective 16 months jail term.
Kagonye complained that the sentence was harsh and excessive.
However, the judges said the magistrate was right when she sentenced her.
“The appellant, who had the onus to persuade us that the sentence is shocking, did not go beyond asserting that the sentence is disturbingly inappropriate. The sentence does not shock us. If anything, it appears to err on the side of leniency. But that is beside the point,” said the judges.
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The judges did not agree that the trial court sentenced Kagonye on the principles applicable to the offence of criminal abuse of duty as a public officer as defined in s 174 of the Criminal Law Code.
Petronella Kagonye
“The trial court took into account the fact that at the time the offence was committed, the appellant was the Minister of Public Service, Labour and Social Welfare.
“Accordingly, one of her key result areas was to enhance social protection of vulnerable groups in the country. The e-Learning project was put in place to support rural schools by providing computers for use by vulnerable school children.
“The appellant was the best person to have appreciated the need to take the laptops to rural schools as a way of removing some of the barriers to accessing education. As a Member of Parliament, she also betrayed the school children and other members of Goromonzi South Constituency at large.”
The judges added that Kagonye indeed abused her position of trust.
“She became an obstacle to social development. She diverted laptops acquired using public funds for her own selfish ends. To that extent, the trial court discerned traits of corruption in the way that the appellant committed the offence and was mindful of that in assessing the sentence.
“We do not think that is tantamount to sentencing on the basis that the appellant had committed the offence of criminal abuse of duty as a public officer.”
Chikowero and Manyangadze said it was true that the state outline put the value of the 20 computers at US$8 000.
“What this all means is that the value of the laptops was not an issue at the trial. It cannot be an issue on appeal. The trial court was correct in suspending a portion of the sentence on the condition that the appellant pays restitution in the sum of US$10 000.
“We are satisfied that sound reasons were given for not imposing a fine or ordering the appellant to perform community service. It is not a given that a custodial sentence is inappropriate in all cases where the effective prison sentence does not exceed 24 months. Each case depends on its own circumstances.
They said community service sentences or a fine would have sent the wrong message to society “that, despite the serious developmental challenges this country is grappling with, one can steal goods meant for vulnerable members of the society, purchased using public funds, and, in the learned magistrate’s words “get away with it.”
The judges said she must understand that when the magistrate sent her to jail with a baby, that was a clear punishment and did that knowingly.
“The sentence imposed falls within this range. The appeal against the sentence is unmeritorious. In the result, the appeal be and is hereby dismissed in its entirety,” they ruled.
