via Kereke rape: Lawyers row over affidavit – NewZimbabwe 13/01/2016
LAWYERS representing Bikita West legislator, Munyaradzi Kereke, who is accused of raping his niece back in 2010 sought to challenge medical affidavits tendered as exhibits as the trial continued on Wednesday.
Kereke has been fighting to block prosecution for over four years although he denies the allegations. The Prosecutor General (GP) declined to deal with the case but it went to trial after the Constitutional Court allowed private prosecution.
His lawyer, James Makiya, also demanded an order to acquire communication evidence between his client and his accuser from Econet and Telecel.
The attorney objected to the medical affidavit, arguing that it was acquired without the knowledge of the police. He accused private prosecutor, Charles Warara, of sneaking the report into the docket.
Makaya insisted that it must be removed from the record.
“The document was never part of a package that came from the Prosecutor General’s (PG) office. The document is an alien which was sneaked into court’s records by the private prosecutor,” he said.
However, private prosecutor Warara hit back at his Kereke’s lawyer, leaving the attorney stammering while trying to support his argument.
The visibly disturbed defence lawyer, Makiya, frequently asked the magistrate to allow him to be directed on next move by Kereke.
“The two applications are generally distracting,” charged the prosecutor.
“Since 2010 the accused knew he has a criminal case pending and the nature of the records but he ignored that. It is not apparent to my understanding, so far, what is intended to be achieved by this application.
“It leaves the court speculating and it’s like a fishing expedition. Let me remind you that this is a trial. The order was granted in 2012 and he (Kereke) knew the implications of his case.”
Warara continued: “My colleague is trying to buy time by making unnecessary applications.
“A private prosecutor is privileged to produce evidence. I’m avoiding chronicling the history of this matter but it should be put on record that even the PG was inactive.
“The police and the PG were against private prosecution; so why should we be hamstrung by them when they were against this case being brought to private prosecution.”
Kereke’s trial, the first high profile private prosecution case in years, comes after then Attorney General Johannes Tomana had, for the past five years, declined to prosecute the case arguing that the evidence was insufficient.
Warara argued that the police do not direct the operations of the prosecutor or the other way round even if it was a public prosecutor.
He accused the defence of trying to avert justice and disadvantage the girl who was allegedly abused.
“That’s inappropriate but we won’t be limited. We can direct our case as we are doing and defence has no powers over that.”
Kekere’s lawyer then told the court that a lot had been said so he intended to be directed by his client.
His request was however, unsuccessful after prosecutor Warara argued that if Kereke was “so educated” he should not have sought legal representation.
“He (Kereke) must have directed (his lawyer) before not in this court. This is inappropriate and he can’t be directed by his client on questions of law.
“If he wants I can cross examine him and show him how the court operates,” said Warara.
Magistrate Noel Mupeiwa then ruled that there was no a valid reason to claim that the medical affidavit was prejudicial to Kereke.
“According to law any relevant document is admissible and the court can’t expunge such a document,” he said.
Regarding the mobile communication records, the magistrate ruled that Kereke was facing a serious crime which may attract 20 years of imprisonment upon conviction and should, thus, be allowed to acquire any documents that he thinks will exonerate him.
“I see no reason the accused can be barred from getting the call or texts history from service providers because this is a criminal case
“One may argue that he should have done that before, but if he feels he must do it now he must not be barred.”
The trial continues Thursday and over 6 witnesses are expected to testify.