Fidelis Munyoro Chief Court Reporter—
Jailed former Air Zimbabwe chief executive Peter Chikumba yesterday got a reprieve after the High Court granted his request to stay out of prison on $2 000 bail, while he contests his conviction on a charge of criminal abuse of duty. The single-judge bench of Justice Joseph Martin Mafusire, granted Chikumba (60) bail, coupled with stringent conditions pending the disposal of his appeal against both conviction and sentence.
Chikumba argues that the charge he was convicted of in the Magistrates’ Court can only apply to public officers and his appeal is based on the fact that Air Zimbabwe staff are not public officers. In his judgment, Justice Mafusire observed that a substantial question exists likely resulting in the quashing of the Magistrate Court’s decision.
“In my view the applicant was not a public officer. In my view, the appeal court is likely to find that the applicant was wrongly convicted,” said Justice Mafusire.
“But if am wrong on this, the two judges of appeal will correct it. For now I find the prospects of the applicant’s appeal are free from predictable failure.” Justice Mafusire also ruled that Chikumba was not a flight risk and freed him on $2 000 bail. The other bail conditions include surrendering title deeds of his Borrowdale house, travel restrictions and reporting to police once a week.
Justice Mafusire said in an application for bail pending appeal, it was not the function of the judicial officer to satisfy himself beyond any measure of doubt whether or not grounds of appeal “are doomed to fail”. “If the applicant has some fighting chances on appeal, then all the other relevant factors being neutral, the applicant must be entitled to relief,” he said.
In the previous applications, Chikumba was adjudged to be a flight risk, but given the new ground of appeal, the judge felt the conviction “is likely to be set-aside on appeal”. “It seems reasonable to assume he will want to go through the appeal process and be vindicated,” said the judge adding, “I see no grave risk of him skipping bail that may not be mitigated by stringent conditions.”
During the arguments, Mr Innocent Muchini of the Prosecutor-General’s Office made a point that in certain instances the State does run private firms and their workers are in the service of the State. Justice Mafusire did not agree.
“The argument is fallacious,” he said. “It purports to read into the Code words that are not there. The section does not refer to Government-controlled entities. It refers to persons holding office in the service of the State.” The Government, the judge said, was merely a shareholder in the airline and not Chikumba’s employer.
Justice Mafusire accepted the argument by Advocate Thabani Mpofu, assisted by Adv Sylvester Hashiti, instructed Mr Admire Rubaya, acting for Chikumba, that the discovery that his client was not a public officer constituted changed circumstances warranting him to bring such an application.
Chikumba was convicted along with the airline’s former corporate secretary Grace Pfumbidzayi and jailed seven years effective for criminal abuse of duty under the Criminal Law (Codification Reform) Act. A charge of criminal abuse of duty is only applicable to public officers as defined in the country’s statutes.
Chikumba believes that his prospects of success on appeal are high and sought to be freed on bail since it is clear that the Criminal Law (Codification Reform) Act, excluded Air Zimbabwe Holdings (Private) Limited workers from the list of public officers.
Pfumbidzayi should be a relieved person following this ruling, because chances are high that she will be granted similar relief in due course.