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Fidelis Munyoro

ONE of the three men on death row over the killing of Harare orthopaedic surgeon Dr Chris Mushonga in 2009, recently had his conviction quashed by the Supreme Court after it was found he was in jail on other charges on the night of the fatal assault.

Stephen Zimowa alongside Makaika Milanzi, Antony Kumbula, have been in prison since 2017.

The three were sentenced to death for aggravated murder after the High Court found them guilty of murder in the course of an armed robbery. Dr Mushonga died a month after the brutal attack at his Mt Pleasant home.

After spending nearly seven years in prison for a wrongful murder conviction, Zimowa has successfully appealed against the judgment of the lower court. The Supreme Court found he had a perfect alibi.

Dr Mushonga was the husband of Ambassador Priscilla Misihairabwi-Mushonga. Through his legal counsel, Mr Tachiwana Nyahuma of Nyahuma Golden Stairs Chambers, Zimowa successfully appealed against the whole judgment of the lower court as it applied to him.

The appeal bench of Justice Tendai Uchena, Justice Alfas Chitakunye and Justice Joseph Musakwa vacated Zimowa’s conviction after finding that he was already in custody on another charge at the time the crime was committed and therefore could not have been at the scene of the murder.

The court, however, threw out the appeals by Milanzi and Kumbula.

“After reading documents filed of record and hearing counsel, it is ordered that the appeal against conviction and sentence by the first and second appellants (Milanzi and Kumbula) be and is hereby dismissed.

“By consent the appeal by the third appellant (Zimowa) be and is hereby upheld in its entirety.

“The judgment of the court-a quo in respect of the third appellant be and is hereby set aside and substituted as follows: Third accused Stephen Zimowa be and is hereby found not guilty and is acquitted,” read the court ruling.

In convicting Zimowa of the murder charge, the High Court had relied on eyewitness identification evidence. However, during the hearing of the appeal, the prosecution conceded to the exoneration of Zimowa, given the uncontroverted evidence that he was already lodged in prison when the robbery was committed.

The High Court slapped Zimowa, Milanzi, and Kumbula with the death penalty in 2017 after finding no extenuating circumstances in their case. Seven men were initially arrested over the murder, but only three were found guilty of the offence.

The heavily armed gang stormed the late surgeon’s Mt Pleasant house at midnight, disarmed a police officer guarding the property before brutally assaulting Dr Mushonga, a maid and a family friend.

Dr Mushonga was repeatedly struck on the head with the butt of an AK47 rifle. He sustained serious head injuries and severe internal bleeding.

Zimowa was sentenced to death while still serving a lengthy prison term for robbing the same family.

For armed robbery, Zimowa was convicted together with two others— Asani Chikwanda and Crispen Sibanda, who were, however, cleared of the murder charge. Now his lawyer is battling to secure his release from jail amid reports that Zimowa is still held in prison on another charge.

Mr Nyahuma last month wrote to the prisons authorities seeking an explanation why Zimowa was still in prison after his acquittal three months ago.

“Notwithstanding our client’s said acquittal, we have found out that you are still holding him in custody,” he said in a letter dated February 29, 2024.

“In this last respect, we kindly request the basis upon which our client was not liberated upon the setting aside of his conviction and sentence as aforesaid.

“We think that you are holding an innocent man in jail for no just cause. For this reason, we ask that you respond to this letter with great urgency so that we may then do the needful at law to secure his freedom should the correct position be that he in fact ought to be freed from the chains that presently shackle him to gaol.”

The prisons authorities are yet to respond.