leeroy mupariri
Fidelis Munyoro
Chief Court Reporter
THE High Court yesterday started hearing the application by businessmen Mike Chimombe and Moses Mpofu for a formal referral to the Constitutional Court the question of their rights, which they claim to being violated because the assessors in their criminal trial are aged above 70.
Their trial over the alleged embezzlement of US$7 million was halted earlier this month after they raised the constitutional questions.
The defence team, led by Professor Lovemore Madhuku, made their submissions, raising constitutional issues related to the composition of the court, which he argued was unconstitutional. They sought to impugn Section 6 of the High Court Act, which permits the appointment of assessors, but without giving an age limit. They want the section struck off the statutes for contravening certain provisions of the Constitution.
It was established as a matter of fact that the assessors, who are part of the bench presiding over Chimombe and Mpofu’s trial, are above 70 years old. The judge is below the age of 70.
It was Prof Madhuku’s argument that the Constitutional Court put the maximum age limit of 70 years for judges of the court, but their defence argument is that it also applies to assessors.
“The mere fact that there is a provision in the High Court Act, which allows assessors to be above 70, would mean that the High Court Act is unconstitutional,” he argued. “So we are seeking that referral of the questions to the Constitutional Court.”
Arguing the matter in the joint application, Advocate Tapson Dzvetero also requested the court to refer to the Constitutional Court the question of whether the High Court’s refusal to entertain the accused’s appeal on the basis of their indictment, thus rendered the appeal moot amounts to violation of their constitutional rights.
The defence team dropped several issues they wanted referred to the Constitutional Court for determination, including the permission given for the live streaming of the trial. Their clients indicated that they were happy with the move to have their trial broadcast, but they were not happy with the manner in which the matter was handled.
The prosecution is yet to respond to the application as the defence is still continuing with its submission. The hearing was tentatively adjourned to October 29 for continuation.
In their application, Chimombe and Mpofu argue that the High Court Act does not specify a maximum age limit for assessors, which they claim contradicts the Constitution. The Constitution set a maximum age limit of 70, now 75 following an amendment, for judges and the two argue that this applies to all judicial officers serving on the High Court.
In all criminal cases tried in the High Court, a judge sits with two assessors and while the judge decides questions of law alone, on questions of fact the court works by majority vote with the three having an equal vote.
The prosecution has been arguing that there is no law limiting the age of assessors in High Court criminal trials and so the application of the fraud-accused duo for a referral to the Constitutional Court, has no merit.
This is a fundamental point in the case, meaning that the request for referral to the Constitutional Court may be overruled due to this technicality.
The Customary Law and Local Courts Act of 1990 also allows for the appointment of assessors in community courts, but there is no mention of age restrictions.
The High Court Act also does not provide any guidance on age limits for assessors in that court, where in criminal cases a judge sits with two assessors.
In essence, the prosecution’s argument that there is no law limiting the age of assessors seems to be supported by the available legislation.
However, the Constitutional Court may still consider the application if it raises significant constitutional issues.
In the present case, the prosecution argues that Chimombe and Mpofu’s application for referral to the Constitutional Court, is fatally flawed and should be rejected.
