HIGH Court judge Justice Tawanda Chitapi is next month expected to hand down a ruling on the special plea by Owen Kuchata and three military officers facing charges of treason for allegedly attempting to bomb the Gushungo Dairy plant in January 2016, who argue they have previously stood trial on the same case.
BY PAIDAMOYO MUZULU
Kuchata is being jointly charged with Borman Ngwenya, Silas Pfupa and Solomon Makumbe in the fresh charges after they went through a gruelling trial last year.
At the trial at the Harare Regional Magistrates’ Court, the quartet faced charges of possession of weaponry of insurgency, banditry, sabotage or terrorism.
Kuchata was convicted on his own plea of guilty and is serving effective nine years at Chikurubi Maximum Security Prison, while Ngwenya was acquitted after a full trial. Pfupa and Makumbe had a plea bargain and became State witnesses against their co-accused.
Ngwenya’s legal representative Exactly Mangezi confirmed Justice Chitapi would soon make the ruling after they raised a special plea.
“We filed a special plea and Justice Chitapi will make a ruling on November 14, 2017,” he said.
Mangezi, in his application, wrote: “The second accused has raised a special plea to the charge of terrorism. His special plea is to the effect that he has previously been tried and acquitted of the same facts and circumstances which ground the charge of treason. In essence, the second accused person pleads the defence of autrefois acquit [formerly acquitted].”
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Mangezi averred the argument is grounded in the Constitution.
“The starting point of the second accused’s argument founds foundation in Section 70(1)(m) of the Constitution of Zimbabwe. Under this section, an accused person accused of an offence has the right not to be tried for an offence in respect of an act of omission for which he/she has been pardoned or either acquitted or convicted on the merits,” the application read.
Mangezi further submitted: “For the plea to succeed, an accused person must show that he was in jeopardy at the previous trial of being convicted of the charge that he now faces or a substantially similar charge, that he was previously tried on substantially the same charges by a court of competent jurisdiction and that he was acquitted, which acquittal was on the merits.”
The State’s case is based on the accused reconnaissance trip to President Robert Mugabe’s Zvimba home, a visit to the Chinese Embassy in Harare and their subsequent arrest on January 22, 2016 in Mazowe on their way to bomb the Alpha and Omega Dairy plant.
Mangezi concluded the application by saying: “Undoubtedly, a conviction on treason amounts to a reversal of the previous acquittal and if both charges had been put in one indictment, this would have amounted to splitting charges.”
