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Daniel Nemukuyu Senior Court Reporter
The Constitutional Court yesterday threw out a freedom bid by convicted murderer and robber Jonathan Mutsinze and remitted the case to the High Court for the reconstruction of a missing record and imposition of an appropriate sentence. Justice Paddington Garwe read the order in court yesterday on behalf of the nine-member bench saying a detailed judgment would be availed in due course.

Mutsinze was arrested for murdering a police officer and a security guard during a robbery.
His court record went missing around 2003 just after his conviction and he spent 11 years in remand prison awaiting sentence.

When the matter resurfaced in 2013, Mutsinze shifted the goal- posts and argued that he was never convicted and that the court file disappeared just before judgment was pronounced.
However, Justice Charles Hungwe, the trial prosecutor Mrs Florence Ziyambi (now Deputy Attorney-General), an assessor and a transcriber confirmed that indeed Mutsinze was a convict although the judgment could not be found.

He was now seeking permanent stay of prosecution on the basis of an inordinate delay and unavailability of the court record.
But yesterday Justice Garwe dismissed the applica- tion.

“It is ordered that the application for the trial of the applicant in case number CRB8/2000 to be permanently stayed be and is hereby dismissed.
“The matter is remitted to the trial judge at the High Court, Harare, for the reconstruction of the missing record to include the reasons for conviction, proceedings and findings on the question of extenuation and thereafter to proceed to pass sentence.

“Reasons for this order will follow in due course and there be no order as to costs,” ruled the court.
Justice Hungwe was last week cleared of any wrongdoing in the disappearance of Mutsinze’s court record.

The court last week heard that Justice Hungwe had no reason to cause the disappearance of the record of proceedings for a matter that he was handling.
Asked by the court if Justice Hungwe could have played any role in the disappearance of the record, Mutsinze’s lawyer, Mr Tazorora Musarurwa, said the judge would not have derived any benefit from such an act.

Chief Justice Godfrey Chidyausiku said the hearing had failed to establish the culprit that caused the disappearance of the record and, if anything, Mutsinze was the only person who was likely to benefit from it.

Instead, the Chief Justice said Mutsinze was partly to blame for the delay in the finalisation of the matter.
Justice Hungwe, in his affidavit, said there was strong evidence of collusion that led to the disappearance of the record of proceedings, premature erasure of tapes and vanishing of his handwritten notes.

He said there was reasonable suspicion that Mutsinze could have connived with some officers at the High Court as well as prison officials to cause the disappearance of the record.