Magistrate’s Incompetence Results In Rape Convict Being Set Free Six Years After Conviction

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By Mary Taruvinga

A 53-year-old Chinhoyi man, Tirivashoma Chigwaja has been described as a lucky man by the High Court after his 20-year jail term was quashed on grounds that the magistrate who handled his case technically erred in convicting and sentencing him.

This was even though Chigwaja had pleaded guilty to the allegation when he was hauled to court in 2014.

Judges of appeal, Justices Tawanda Chitapi and Siyabona Musithu, have since ordered his immediate release, noting that lower court’s incompetence has made him a lucky man.

The quinquagenarian was convicted after he entered own guilty plea for raping at 13-year-old girl back in 2014.

After the abuse, he told the victim that he would commit suicide if she ever told anyone.

Nevertheless, the girl proceeded to tell her brother and upon learning that the abuse had been exposed, Chigwaja drank poison but lived to face the consequences of his actions.

Upon appearing in court, he immediately pleaded guilty to the charge.

Court papers show that he wept uncontrollably when he took to the dock.

Asked why he was crying, he told a Chinhoyi magistrate that he regretted raping the girl and was feeling bad about it.

Chigwaja admitted to charge before he was erroneously convicted and caged 20 years, of which one was suspended on condition of good behaviour.

He has been in jail for the past six years until but decided to make a belated appeal recently.

Justices Chitapi and Musithu then discovered that procedures were not followed after he pleaded guilty to the offence, rendering all proceedings which followed a nullity and the case had to be permanently stayed.

The court heard the trial magistrate asked Chigwaja if he had understood the facts and other questions in the nature of extrapolating the essential elements of rape, but this was not done properly.

Chitapi said the proceeding did not comply with the provisions of section 271 (2) (b) as read with (271) (3) of the Criminal Procedure and Evidence Act {Chapter 9:07}.

“There appears to be no problem presently with the disposal of trials by guilty pleas in the magistrates,” Chitapi, who wrote the judgement, said.

“The procedure for trial by guilty plea must be considered as a fair trial standard which should be followed. The magistrate must inter alia explain the charge and record the explanation which he will have given to the accused.  Failure to comply simply means that the trial is not procedurally in accordance with the law.”

The judges also said such an omission or irregularity cannot be remedied because the constitution provides that no law may limit the right to a fair trial.

“The conviction has been second time lucky in that his conviction and sentence must be set aside,” the judges ruled.

Chitapi however said Chigwaja’s luck might be short lived because the setting aside does not mean acquittal.

The Prosecutor General (PG) is allowed to institute a fresh prosecution.

“If a trial has been declared a mistrial and a nullity nothing comes out of it. It is as if no trial took place. This is the reason why the PG must retain his prerogative to institute a fresh prosecution.”

The judges said the fact that Chigwaja has already served some years should be taken into account if he is to be convicted again.

They went on to rule that proceedings under CRB CHNR 112/14 be set aside.

The conviction and sentence was also set aside and court ordered his immediate release.