BY CHARLES LAITON
HARARE High Court judge Justice Pisirai Kwenda has dismissed the State’s assertion that Vice-President Constantino Chiwenga’s estranged wife, Marry Mubaiwa, who is facing fraud, money laundering and externalisation charges, is likely to face jail term if convicted.
Justice Kwenda said the offences for which Marry spent the festive season in remand prison, are non-jailable considering the available sentencing options that were enacted by the legislature. The judge made the remarks in his judgment yesterday while releasing Marry on $50 000 bail pending trial.
“The court aquo (Deputy chief magistrate Chrispen Mberewere) misdirected itself on two grounds upon which it refused bail. Firstly, policy considerations do not override the Constitution. If anything, policy must be informed by the supreme law. The court aquo erred in considering irrelevant issues and failing to take into account relevant considerations.
Secondly, the appellant (Marry Chiwenga) does not risk imprisonment if convicted,” Justice Kwenda said.
Marry is accused of externalising funds to China and South Africa, where she reportedly bought
two houses and three top-of-the-range cars. The former model is also alleged to have attempted to kill the VP while he was hospitalised in South Africa and pushing to wed him without his consent and knowledge.
In his judgment, Justice Kwenda said the deputy chief magistrate had erroneously concluded that the State had overwhelming evidence and that chances of Marry’s conviction, after a proper prosecution, were high.
“It (the lower court) also found that there was a real chance that the appellant would be convicted of a fraud charge and that could also frighten her…..however that is not what induces flight. What induces flight are the sentencing provisions. At the hearing it became clear that in all probabilities the worst that will happen if the appellant is convicted of money laundering are non-custodial sentences…,” the judge said.
“What is clear is that money laundering is, in essence, a fiscal offence which is punished, as a first option, by a fine which is beyond the usual levels or double the illicit gain/advantage…the court aquo therefore erred when it concluded that the appellant was a flight risk because she will be imprisoned if convicted. The misdirection arises from its failure to consider the sentencing provisions.”
Justice Kwenda further said Mberewere’s misdirection was even more glaring with regards to the externalisation charges, adding the sentencing provisions, in the case of a conviction, provide for a fine and a prison term wholly suspended on condition of repatriation of the externalised funds.
“In other words, the legislature, in its infinite wisdom, contemplated a situation whereby a person retains his/her freedom even after being convicted of externalising funds unlawfully,” he said.
Commenting on Marry’s alleged push to wed the bed-ridden Chiwenga, Justice Kwenda said marriage was a contract and as such the parties intending to tie the knot must declare their intention and eligibility to marry before the marriage officer under oath and in the presence of each other.
“The State alleges that the licence and the marriage certificate were completed without the knowledge and involvement of the appellant’s husband (Chiwenga). I do not have adequate facts to assess the veracity of that allegation and decrypt appellant’s possible motive,” Justice Kwenda said.
“Whether or not there is a flight risk depends on the likely sentence which, in turn, would be informed by her prima facie motivation for allegedly seeking to register the marriage at all costs, at that point in time. While not disputing that the facts alleged against her gave rise to a reasonable suspicion that she committed the act of fraud, the appellant did not attempt an innocent explanation for her alleged conduct. At the same time, the State did not argue before me why the alleged fraud would attract a prison term.”
Turning to the attempted murder case in which Marry is alleged to have attempted to pull the plug on Chiwenga’s life support system, the judge said the deputy chief magistrate did not place any weight on the submissions by the State regarding the allegation, adding his “oversight was not fatal”.
“It will be recalled that the State argued that the appellant had set to kill her husband and she had unfinished business in that regard. The court aquo did not place any weight on that submission. The oversight was not fatal. The attempted murder is alleged to have been committed at a time when appellant’s husband was admitted in hospital and dependent on a life-support system. That situation was no longer obtaining at the time of the bail application. The averment in the bail statement that the parties had interacted subsequent to the alleged attempted murder was not controverted by the State,” Justice Kwenda said.
As part of her bail conditions, Marry was ordered to surrender her diplomatic passport to the clerk of court, reside at her Borrowdale residence in Harare, surrender title deeds of her father, Keni Mubaiwa’s Highlands home and to report to police once a fortnight.