Their trial over the alleged embezzlement of US$7 million
was halted earlier this month after they raised some constitutional questions. One
key question is whether it is legal to have assessors over 70 years old,
sitting alongside a judge in a trial.
The two want the High Court to examine the question and if
necessary, seek a Constitutional Court ruling.
The Herald reports that Chimombe and Mpofu argue that the
High Court Act does not specify a maximum age limit for assessors, which they
claim contradicts the Constitution. The Constitution set a maximum age limit of
70, now 75 following an amendment, for judges and the two argue that this
applies to all judicial officers serving on the High Court.
In all criminal cases tried in the High Court, a judge sits
with two assessors and while the judge decides questions of law alone, on
questions of fact the court works by majority vote with the three having an
equal vote.
The prosecution has been arguing that there is no law
limiting the age of assessors in High Court criminal trials and so the
application of the fraud-accused duo for a referral to the Constitutional
Court, has no merit.
This is a fundamental point in the case, meaning that the
request for referral to the Constitutional Court may be overruled due to this
technicality.
The Customary Law and Local Courts Act of 1990 also allows
for the appointment of assessors in community courts, but there is no mention
of age restrictions.
The High Court Act also does not provide any guidance on
age limits for assessors in that court, where in criminal cases a judge sits
with two assessors.
In essence, the prosecution’s argument that there is no law
limiting the age of assessors seems to be supported by the available
legislation.
However, the Constitutional Court may still consider the
application if it raises significant constitutional issues.
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