THE trial of former Finance Minister Ignatius Chombo on charges of criminal abuse of office will go ahead after the Supreme Court threw out his appeal for permanent stay of prosecution.
Chombo was seeking permanent stay of prosecution on the
basis of alleged torture by the army.
While the higher court upheld the lower court’s decision to
dismiss Chombo’s application, the former minister successfully won the order
for declaration of violation of his rights for alleged torture in the hands of
the military.
Chombo, who was being represented by Professor Lovemore
Madhuku, argued his appeal in November last year and the court’s order was made
available last week.
A three-judge panel agreed to grant the partial appeal
after hearing submissions from both counsel submissions.
“The appeal succeeds in part,” ruled the judges. “The order
of the court a quo dismissing the claim for a permanent stay of prosecution is
upheld. “The order dismissing the declaration of the violation of rights is set
aside.”
The court then declared that the actions of the State
towards the applicant between November 15 and 23, 2017, infringed Chombo’s
right to personal liberty protected by the Constitution.
The court also ruled that Chombo’s right to be informed of
the reason for his arrest at the time of his arrest as prescribed in the
Constitution was also violated.
Chombo’s appeal to the Supreme Court was prompted by the
High Court’s decision to throw out his application for a permanent stay of
prosecution.
In dismissing Chombo’s application, the court ruled that
his alleged abduction by members of the Zimbabwe National Army during Operation
Restore Legacy in November 2017, was not meant to extract a confession for
criminal offences against him.
Chombo is facing a string of charges involving high-level
corruption, fraud and criminal nuisance.
Following his arrest and his subsequent appearance in court
on criminal charges, Chombo petitioned the High Court in 2018, seeking an order
to compel the National Prosecuting Authority (NPA) and its boss
Prosecutor-General Kumbirai Hodzi to permanently suspend his prosecution,
alleging violation of his constitutional rights as enshrined in the Bill of
Rights.
He claimed to have been tortured at the hands of military
personnel. The then High Court judge, Justice Nicholas Mathonsi found no merit
in the application.
He made a finding that the circumstances under which Chombo
was “raided, handcuffed, blindfolded and frog-marched to a vehicle, which took
him to an unknown place where he was held captive for almost nine days”, was
not refuted in a meaningful way.
He also found that the ill-treatment infringed Chombo’s
constitutional rights as claimed, but raised the question whether or not the
appropriate remedy should be an order for permanent stay of prosecution.
At the end, Justice Mathonsi found it appropriate to
dismiss Chombo’s application on the basis of the law principle that, “where the
torture or ill-treatment of an accused person prior to charges being preferred
against him or her has not resulted in a confession or the extraction of
evidence sought to be used by the prosecution at the criminal trial, but the
prosecution is relying on other evidence not obtained illegally, the accused
person is not entitled to an order of permanent stay of prosecution even though
he or she was ill-treated or tortured”. Herald
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