Source: Chombo trial hangs in the balance | The Herald 18 NOV, 2019
Fidelis Munyoro Chief Court Reporter
FORMER Finance Minister Ignatius Chombo’s corruption trial still hangs in the balance as the Supreme Court last Friday deferred ruling on whether he should get a permanent stay of prosecution on the grounds he was ill-treated at some stage before his arrest.
Chombo (67) is appealing for a permanent stay of prosecution on the basis of ill-treatment during Operation Restore Legacy in 2017 with his lawyers arguing that the ill-treatment and violation of his constitutional rights before his arrest had to be treated as one with his arrest, and the State arguing that there was no connection between that ill-treatment and his subsequent arrest.
His appeal comes after the High Court, early this year threw out his application for a permanent stay of prosecution on finding that while he had been ill-treated and his rights violated, this had nothing to do with his subsequent arrest and the charges laid.
The Supreme Court was supposed to deliver its ruling on Friday, but Justice Ben Hlatshwayo, sitting with Justices Chinembiri Bhunu and Tendai Uchena, now has to decide on questions of jurisdiction.
Both the defence and prosecution counsel now have to file supplementary heads of argument by Friday this week, to deal with that issue.
The matter would be opened on November 26 for oral arguments on the jurisdictional point, before judgment is delivered.
However, during the hearing of the appeal on Thursday last week, the judges were in agreement that the High Court made a correct finding that Chombo had been tortured and his constitutional rights were violated, but erred in failing to then issue a declaratory order confirming the violations.
This was likely to see the matter being referred back to the High Court to deal with the alleged violations of Chombo’s constitutional rights.
However, if the court finds that the High Court had no jurisdiction to hear Chombo’s application, then it is likely to remit it back to the trial magistrate to deal with the question of referral to the Constitutional Court on grounds of the constitutional issues the former minister raised.
Arguing the matter for Chombo, Professor Lovemore Madhuku submitted that his client was seeking permanent stay of prosecution in view of the torture he suffered at the hands of State agents.
“A permanent stay of prosecution is the appropriate relief for the infringement,” he said.
This submission, however, invited interrogation from the bench, with Justice Hlatshwayo seeking to understand why the relief being sought should be the “best price” when the alleged torture and ill-treatment was not linked to the charges Chombo was facing.
Prof Madhuku said the court should consider the circumstances of Chombo’s case from the time he was arrested and detained, including his treatment during nine days of captivity, as a single transaction.
“The violation of the applicant’s rights was at the instance of the State and cannot be separated from the charges,” he said.
“It is fair not to allow the State to get away with this conduct. The whole action should be treated as one transaction which cannot be disconnected to the charges.”
Arguing for the Prosecutor-General’s Office Mr Edmore Makoto stuck to his heads of argument he filed with the court.
He said the prosecution was not relying on evidence or confession resulting from Chombo’s alleged ill-treatment and torture.
“In the circumstances, the court a quo (lower court) cannot be faulted for dismissing the application,” he argued.
“If there were any violations as alleged by the appellant, his remedies lie elsewhere other than in the permanent stay of prosecution.”
In dismissing Chombo’s application, the High Court ruled that his alleged abduction during Operation Restore Legacy in November 2017 was not meant to extract a confession for criminal offences against him.
Following his arrest and his subsequent appearance in court on criminal charges, Chombo petitioned the High Court last year, for an order compelling the prosecution to permanently suspend his prosecution, alleging violation of his constitutional rights quarantined in the Bill of Rights.
Justice Nicholas Mathonsi, who had since been elevated to the Supreme Court, found no merit in the application.
He made a finding that Chombo’s rights were violated considering the manner he 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.