The circumstances which led to Kelvin Mushoshoma to serve a
lengthy sentence of 36 years still remains unclear.
Mushoshoma was along with his co-accused properly charged
with and convicted of two counts of stock theft in March 2012.
He was slapped with 12 years in jail and his co-accused got
22 years, according to the record of the trial magistrate.
However, Mushoshoma’s warrant of committal to prison had 36
years, a figure which appeared to have emerged from the blues.
His co-accused, who had been sentenced to 22 years was released
from prison on presidential amnesty in 2018.
Mushoshoma’s plight came to the attention of Justice Jester
Charewa in June when he applied for bail pending appeal against both conviction
and sentence.
Upon perusal of the record, Justice Charewa noted the
procedural irregularities regarding the review of the matter by a regional
magistrate and the gross irregularities committed by the trial magistrate.
The record showed that Mushoshoma was sentenced to 12 years
imprisonment and his co-accused to 22 years.
No reason was given for the differential of sentence
between two-accused of similar age, who committed the crime acting in common
purpose. As if that was not enough, the trial magistrate then ordered
Mushoshoma to serve 36 years.
Where the 36 years came from, is anyone’s guess. Even if
the magistrate had made an error and intended to add 12 and 22, the sum would
not amount to 36 years. There was no
basis for adding the sentences of two accused persons.
Further it was not clear to whom the total 36 years
applied, Mushoshoma or his co-accused.
After considering the matter on review, Justice Charewa
last week ruled that there was gross incompetence resulting in a grave
miscarriage of justice, which cried out for review.
The judge noted that the matter was not brought to High
Court for review, in terms of the provisions of the High Court Act. Instead it
was sent to a regional magistrate for scrutiny.
Apart from exercising a jurisdiction which he did not have,
the regional magistrate confirmed the proceedings and the record was consigned
to the archives. Justice Charewa said a
reading of the record revealed gross irregularities in sentencing.
“Accused’s sentence was added on to his co-accused sentence
resulting in a shockingly severe and mathematically incorrect total sentence of
36 years,” she said.
“It does not help matters, in the absence of the rectification of the record, that the warrant has the mathematically correct total of 34 years’ imprisonment. The fact remains that no reasons for this shocking sentence are contained in the record. In the absence of justification, such sentence must perforce be set aside.”
Justice Charewa also criticised the trial magistrate for
discriminating sentence between the two accused persons of similar age who committed
the offence in common purpose.
The legal principle of equality of treatment dictates that
unless, reasons for distinguishing sentence between co-accused is made, they
must receive the same sentence.
Justice Charewa also condemned the regional magistrate for
the unprocedural scrutiny of the trial proceedings when he had no jurisdiction
to do so.
Thus, the judge quashed the confirmation proceedings
because of the gross irregularities committed by both the trial and
scrutinising magistrates on reviewing the matter in terms of the provisions of
the High Court Act.
“This is more so given that these irregularities are that
accused’s co-accused who received a longer term of 22 years has already been
released, while applicant, who was sentenced to 12 years, is still serving an
unjustified global sentence,” said Justice Charewa.
To this end, the judge said Mushoshoma having already
served his sentence was entitled to his immediate release from prison. Herald
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