HARARE - The Constitutional Court has ordered High Court judge Charles Hungwe to write an affidavit within 30 days, detailing reasons for his delay in concluding the case of incarcerated murder suspect Jonathan Mutsinze.
Mutsinze is the founder of the now defunct Jerusalem Apostolic Faith Church, whose murder case has been awaiting judgment for the past 10 years.
He filed a Constitutional Court application seeking an order for a permanent stay of prosecution.
He told the court that his liberty was now a constitutional matter, adding that the delay warranted him to be permanently absolved from the murder charges.
However, Chief Justice Godfrey Chidyausiku yesterday said the presiding judge and the registrar should file affidavits detailing progress on the case, before the matter is heard.
Chidyausiku postponed the matter indefinitely to give the State time to file the required documents, before giving a directive that, “the presiding judge furnishes to this court the reasons for the delay in the conclusion of this matter within the given period of 30 days”.
Chidyausiku also ordered the registrar to file an affidavit on the status of the record in Mutsinze’s case, giving details on whether the court proceedings can be reconstructed.
“The registrar of this court is directed to set down this matter on the next available date upon the filing of the above documents,” Chidyausiku said.
Edmore Nyazamba, who appeared with Chris Mutangadura on behalf of the State, said they found themselves in a “precarious position” to obtain the said affidavit from Hungwe without a court order.
Nyazamba asked the highest court in the land to issue a directive that Hungwe gives details on why it had taken him long to conclude the matter.
However, Chidyausiku said in future, the State should approach the judge, through the office of the registrar. He said the State should not exhibit fear of judges’ offices.
“You should act with more force. We do not expect you to put your tail between your legs and run from a judge,” Chidyausiku said, adding that the State was also an office of authority.
Mutsinze, who is represented by Tazorora Musarurwa from Mambosasa and Partners, is accused of murdering Lesmore Kange and Willis Konje sometime in 1998. He last appeared before Hungwe on March 4, 2003 when the defence case was closed.
He filed an application for discharge after highlighting weaknesses in the State’s case.
“I have become a victim of the system and have been in custody for 16 years of which the last 10 years I have been waiting for judgment.
“This period of time surpasses any form of reasonability as envisaged by Section 13(4) and 18(2) of the Constitution of Zimbabwe.
“I am informed that the reason proffered for my situation is that the record of proceedings was lost and the honourable judge was, therefore, unable to complete the trial by passing judgment.
“I am also informed that the audio tapes that were used to record my trial have since all been erased,” Mutsinze said.
According to court papers, Hungwe postponed the matter to May 6, 2003 for judgment, but since then nothing has materialised.
“On May 6, I was not taken to court as I expected and it was my belief then that there could have been a minor delay in the deliverance of the judgment.
“I began to make inquiries, but nothing came out of it. I was constantly transferred between Chikurubi Maximum Prison and Harare Remand Prison, but the date of judgment remained not forthcoming,” Mutsinze said.