FORMER Central Intelligence Organisation (CIO) deputy director-general Lovemore Mukandi and his three alleged accomplices in a 14-year-old fraud case yesterday appeared before the Constitutional Court (ConCourt) challenging their criminal prosecution and seeking the court to order permanent stay of prosecution.
SENIOR COURT REPORTER
The former top spy boss and his co-appellants, Nelson Silvern Yeukai Mawere-Mubvumbi, David Nyabondo and Mohammed Ahmed Meman were arrested and charged with fraud in 1996, but were removed from remand in 2000 after their trial failed to take place.
However, in September 2011, the State summoned them to court saying the trial would resume in three months’ time, a move which prompted their current court challenge.
Advocate Julia Wood represented Mukandi, Mawere-Mubvumbi and Nyabondo while Tinashe Tanyanyiwa represented Meman.
Advocate Wood submitted that her clients’ constitutional rights had been infringed by the State’s failure to bring finality to the matter.
“It is 14 years now since the appellants were charged and the respondent (State) has not explained the delay in prosecuting the matter after such a long period,” Wood said.
“The State in other words, is saying this court should ignore the Constitution which demands the right to a fair trial. The State is demanding the appellants and the witnesses to remember what happened between 1996 and 1997 which will be very difficult for them and as such they cannot have a fair trial,” she added.
Wood further argued that the State had failed to explain why it also failed to apply for separation of trial and proceed against the other accused persons who were available in the country after realising that Mukandi had gone to Canada for further studies.
Responding to the application, Attorney-General’s representative Sharon Fero said the State would concede that a long period of time had elapsed, but said there were other factors, such as the absence of Mukandi that prevented the matter to be heard on time.
Asked by judge of appeal Justice Vernanda Ziyambi to comment on whether it was moral for the State to let the accused persons wait for such a long period without prosecution, Fero conceded it was immoral, but still maintained it was legal.
“I would submit that the delay from 1999 to 2002 rests on the State, but from 2002 to 2011 it does not rest on the State since it was making efforts to have the 1st appellant (Mukandi) brought back into the country,” Fero said.
Fero, however, conceded that during the nine-year period when Mukandi was out of the country, the State did nothing in respect of the other appellants and further failed to advise them on the progress of the case.
After lengthy submissions by all the parties, Deputy Chief Justice Luke Malaba who was sitting with eight other ConCourt judges, reserved judgment.