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Tendai Rupapa Senior Court Reporter
A murder suspect has challenged the constitutionality of appointing assessors in criminal trials who have reached or are above the age of 70.

The High Court Act recognises the appointment of assessors of fact in any criminal trial.

However, some of the assessors are above the age of 70, but continue sitting with judges presiding over criminal trials in the High Court.

Judges retire at the age of 70.

Alas Sande, who is being tried of murder in the High Court before Justice Tawanda Chitapi, also wants an order declaring the law compelling suspects to disclose their defence at the start of trials as unconstitutional.

Through his lawyer Advocate Silvester Hashiti, Sande argues that it is legally dangerous to allow untrained above 70 years assessors to continue sitting on criminal matters.

“Assessors must of consequence be below the age of 70 as is expected of trained judicial and legal minds,” says Sande. “It is with respect, anomalous to expect a trained judicial mind to retire at 70 and to cease being a trier of fact and law, yet the same does not pertain to assessors of fact in a criminal trial.”

Sande further argues that litigants in civil matters are accorded protection of the law which is not accorded suspects in criminal trials.

“Under the civil regime, the triers of fact are below 70 and impliedly competent, whereas under criminal, no such protection is accorded,” he argues.

“This practice would, in my respectful view, therefore, be contrary to the rights to equal benefit and protection of the law which Section 56 of the Constitution accords everyone.”

Sande is also challenging the constitutionality of Section 66 (6) (b) of the Criminal Procedure and Evidence Act.

The section provides that where a suspect has been committed for trial, there would be served a notice requesting an outline of his/her defence and to supply names of witnesses together with a summary of the defence which each witness will give.

In proving its case, Sande argues that the State should rely on the evidence and witnesses available to them and not on any defence outline or any submissions an accused person makes in the course of a trial.

Mr Washington Munyoro of the Prosecutor-General’s Office is yet to respond to the application.