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Douglas Mahiya

Tendai Rupapa Senior Court Reporter—

five Zimbabwe National Liberation War Veterans’ Association (ZNLWVA) executive members accused of undermining the authority of President Mugabe were yesterday removed from remand by a Harare magistrate who ruled that the State’s house was in shambles.Regional magistrate Mr Hoseah Mujaya dismissed the State’s application for further postponement of the matter that was due for trial.

“The State is not ready for trial, therefore, I am declining further remand. If the State puts its house in order, they will summon you if need be,” he said.

The war vets left the court in a joyous mood, saying their freedom was not a coincidence but was linked to the liberation struggle.

They linked their freedom with the bombing of Chimoio Camp in Mozambique on November 23 1977 by the Rhodesian Air Force under “Operation Dingo”.

Soon after the magistrate pronounced the ruling, a female member of the war veterans whose Chimurenga name was “Nehanda Nyakasikana” and was in the gallery, stood up and reminded the court that Chimoio was bombed on November 23 and the fact that the ruling was delivered on the same date the camp was attacked was not mere coincidence

Speaking as if she was in trance, she said: “Remember Chimoio was attacked on November 23 1977 and today is November 23, always remember that, thank you.”

She then left the court room together with other war veterans who had turned up in solidarity with the accused. They left the court and the State dumbfounded.

The war vets, led by Douglas Mahiya, addressed journalists outside the court building and attributed their “freedom” to the spirit of their departed comrades.

“The spirit of the departed freedom fighters has intervened in this case after realising that their fellow comrades were being tormented. This is not a coincidence, this means a lot and because we know that we are innocent, these spirits fought for us and today November 23, here we are again, going home in smiles,” he said.

Mahiya was jointly charged with Francis Nhando, Victor Matemadanda, Headman Moyo and Hoyini Samuel Bhila and their trial was scheduled to commence on Tuesday but was postponed to yesterday after the State successfully sought a postponement.

However, when they appeared in court yesterday, their lawyers Ms Beatrice Mtetwa, Messrs Harrison Nkomo and Andrew Makoni insisted that they wanted to plead, file their defence outline and except to the charge.

Law officer Mr Tapiwa Kasema told the court that what the defence intended to do was unprocedural saying they should except first before pleading to the charge.

He based his argument on Section 171 of the Criminal Procedure and Evidence Act while the defence team constructed theirs on Section 170 of the same Act.

Ms Mtetwa then accused the State of trying to stall trial proceedings and insisted that they should commence trial.

That is when Mr Kasema made another application seeking for postponement on the basis that he needed time to acquire the certificate for prosecution from the acting PG and to file the charge sheet and the State outline in the record.

“Your Worship, I humbly submit that there is no charge sheet and an outline in your record because the certificate is not yet here. The acting PG was supposed to furnish me with the certificate, but he is attending to other pressing State issues,” he said.

“I therefore seek for a postponement to enable us to file the relevant documents because the matter cannot be prosecuted without a certificate in terms of Section 34 of the CP&E ACT.”

This irked the magistrate who then questioned the State why they had remanded the accused persons for trial without first obtaining the said certificate.

Mr Mujaya reminded the State that a trial court was not a remand court whereby cases due for trial are further remanded to another date.

“Why are they here if I am supposed to remand them all the time, this is not a remand court,” he said.

However, Ms Mtetwa and Mr Khomo accused Mr Kasema of lying and told the court that the State filed the certificates on the remand stage on August 1.

Mr Mujaya then took out the said certificates from the record and ordered both parties to comment on them.

Mr Kasema dismissed the certificates arguing that the then magistrate, Mr Vakayi Chikwekwe, who presided on the initial remand made an order to have the certificate before him, which was complied with.

He added that on the next remand the defence team applied for refusal of further remand before Ms Bianca Makwande on the basis that the acting PG had no powers to issue a certificate and pronounced it invalid.

“The State did not respond to the issue of the authority of the PG, but rather that the certificate was not necessary for purposes of remand and the court ruled that indeed, it was not necessary,” he said.

The State argued that following Mr Makwande’s ruling, everything to do with the certificate at the remand proceedings fell away hence the need to supply the court with a new certificate and State papers for the purposes of trial.

“It is surprising that the defence now wants to use the same certificate that they dismissed saying it was invalid,” Mr Kasema said.

On the other hand, Ms Mtetwa argued that the certificates were not withdrawn but were just argued upon.

She added that if they were invalid like the State was saying, then their clients were unlawfully before the court.

“If the State is saying there is no certificate then the court should set them free. On what basis should they remain on remand?” she said.

The defence insisted that they proceed to trial while the State said it was not ready.

The proceedings were mired in confusion and counter-allegations prompting Mr Mujaya to set the accused persons free.