08 Jul 2015

A panel of five judges at the ongoing sitting of the Court of Appeal (CoA) session was on Tuesday, July 7 taken aback when a state counsel, who immediately made an about turn by conceding, said 10 years without instigating a trial on a suspected murderer, was not a peculiar development in the justice system.

Mr Farayi Mahwite, representing Directorate on Public Prosecutions (DPP), had said despite the lengthy time that the DPP took to take the matter to court for prosecution, he was sure that there is nothing extraordinary about the delay of the case and that the appellant will have a fair trial should he stand trial.

Though Mr Mahwite agreed with the panel that prosecuting suspects within reasonable time is a key component to a fair trial, interestingly, he did not think there would be irreparable harm to Moses Kobedi should he stand trial.

Kobedi, who was represented by attorney Sidney Pilane, is accused for the murder of Geoffrey Moruakgomo at Dinokwane ward, Newtown in Serowe on or about June 17, 2003. The appellant consequently after 10 years made an application to the High Court to have the prosecution against him permanently stayed.

He complained that the respondent had taken an inordinately long time to bring him to trial. However the High Court dismissed his application and ordered that the trial commences.

In July 2003 Kobedi was arrested and detained at Serowe Prison for a period of 10 months and then granted bail in May 2004 by the Serowe Magistrate Court.

As part of his bail conditions, he was required to report to the Serowe Police Station. Submitting before the court, attorney Pilane said between May 2004 and May 2013, the appellant made several enquiries at the Serowe Magistrate Court about progress made in this matter and was informed by staff members that he would be notified of court dates when they were set, but nothing happened regarding the case against the appellant in the intervening period. 

In May 2013 the appellant was re-arrested in connection with the same charge and again detained at Serowe Prison. He was committed to the High Court in Francistown for trial on May 29, 2013. The trial against him had not begun when he brought the application in September 2014.

The appellant contends that the decision to prosecute him after a period of 10 years is in violation of his rights as enshrined in Section 10 (1) of the Constitution. The Section requires that an accused person be afforded a fair trial within a reasonable period of time.

“We will submit that Section 10 (1) enjoined the High Court to bring home to the administration of the criminal justice system that the courts will not stand idle when the rights in the Constitution are trampled upon because of inexcusable system‘s inefficiency and individual negligence. 

The prejudice suffered by the appellant is what the section seeks to protect persons charged with offenses against”, he submitted.

Attorney Pilane further submitted that the High Court failed to properly weigh the different factors involved in making its decision. 

He said undue weight was attached to the societal interest in seeing that those who are accused of committing serious crimes are brought to justice, without proper regard to the prejudice suffered by the appellant and the presumption of innocence. With this he said the appellant is consequently entitled to an order permanently staying the prosecution against him. 

Meanwhile attorney Mahwite said it is the state’s position that the court never misdirected itself in its consideration and assessment of factors to be taken into account when determining an application of this nature. He said the court did not overlook the appellant’s personal circumstances.

He also noted that the court looked whether there is a likelihood that the appellant will be greatly prejudiced if the trial is ordered to proceed under the stated or current conditions. Mr Mahwite said the court considered whether there would be any trial related prejudice, noting that in this instance the appellant did not state or imply anywhere that he would suffer trial related prejudice.

He noted that the court cannot speculate of what that prejudice might be, but rather deals with issues that are before it. Mr Mahwite therefore said there is nothing before the court that warrants a permanent stay especially having the appellant’s and the society at large interests at the forefront.

He said the Court of Appeal should note the sincerity of the state and the urgency with which the state proceeded thereafter upon the realization of an error that had caused the matter not to be prosecuted. Judgment on the matter will be delivered on July 30, 2015. ENDS