His daughter was just 13, at the time he abused her, seven
years ago.
In between his shameful act, and encounter with the arms of
justice, Tirivashoma Chigwaja tried, but failed to kill himself by taking some
poison.
Today, he is a free man.
His sentence was quashed by a High Court judge because of a
procedural flaw in the way his trial was handled.
Justice Tawanda Chitapi set aside the conviction and
sentence, which would have seen Chigwaja (54) of Chinhoyi, spending 19 years in
jail.
Chigwaja had appealed to the High Court.
The judge ordered his immediate release from prison and a
fresh trial.
In his findings, Justice Chitapi noted that although
Chigwaja had pleaded guilty, there were procedural irregularities in the way
his trial was handled.
The judge claimed the magistrate failed to follow procedure
for trial entered by a guilty plea.
“The trial of the accused was disposed of by way of a
guilty plea,” ruled Justice Chitapi.
“The regional magistrate then asked the accused whether the
accused had understood the facts, and other questions, in the nature of
extrapolating the essential element of rape.
“The proceedings did not comply with the provisions of s217
(2) as read with s 271(3) of the Criminal Procedure and Evidence Act chapter
9:07.”
Justice Chitapi ordered a fresh trial.
“The proceedings, in case number CRB CHNR 112/14, be and
are hereby set aside for gross procedural irregularity which cannot be
condoned.
“The conviction and sentence imposed are set aside and the
accused entitled to his immediate release.
“The Prosecutor General’s prerogative to prosecute the
accused and, therefore, to institute fresh charges, remains open to him to
exercise.
“In the event that a fresh prosecution is instituted, and
the accused is convicted, the trial magistrate, in assessing an appropriate
sentence, shall take into account the sentence already served by the accused up
to the date of his release, as part of an already served portion of the new
sentence which the magistrate may impose.”
The State had it that, sometime in 2015, at Nyamugomba
Farm, Chigwaja forced entry into his 13-year-old daughter’s room, where he
raped her once.
He allegedly told the teenager not to disclose the
incident.
He threatened he would take poison, to kill himself, if she
disclosed the issue.
The teenager later disclosed the rape to her brother and
Chigwaja took poison, but survived. H Metro
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