25 Oct 2022

Gaborone High Court’s Judge Michael Leburu says a confession statement by murder accused person, Hamadi Mkhuha was not freely and voluntary made therefore inadmissible as evidence before court.

Judge Leburu made the ruling on Monday stating that admissibility of Mkhuha’s confession statement was brought to the fore by his attorney, Mr Matlhogonolo Makgane on July 8 as he was questioning its authenticity therefore resulting in the court conducting a trial within a trial.

He said the prosecution had called witnesses, chief among them Magistrate Mr Gaseitsiwe Tonoki, who had recorded the confession statement from the witness to demonstrate its authenticity.

However, Judge Leburu said the second accused person, through his attorney had on the other hand maintained that the confession statement must be rendered inadmissible because it was involuntarily made. The defence also argued that the statement was not recorded in the accused person’s original language, Shona.

Judge Leburu said even though the prosecution had maintained that a confession statement was not a result of undue influence, the accused person had told the court that prior to making the statement, the investigating officer had promised to make him an accomplice witness and that was recorded in the confession statement.

Judge Leburu said Section 228 of the Criminal Procedure and Evidence (CP&E) stated conditions under which a confession statement must be recorded to ascertain its admissibility before a court of law.

He said the confession statement must be done by a person voluntarily and without undue influence.

Based on the evidence presented by both parties, Judge Leburu was of the view that the confession was lacking pertinent ingredients as required by law to be admissible as evidence before court.

He said the court was to determine whether the promise made to the accused person by the investigating officer was sufficient to render it non-permissible.

“The court has to prove beyond reasonable doubt that the allegations that he was promised to be used as a prosecution witness were factual and whether he had voluntarily recorded the confession statement,” Judge Leburu said.

Meanwhile, Ernest Legwale of Phaphane Ward in Mochudi together with two Zimbabwean men, Mkhuha and another who is still on the run, are facing a single of murder of Thato Meswele on September 10, 2015 in Oodi.

The accused persons, acting jointly and with common purpose, unlawfully assaulted Meswele thereby inflicting serious injuries, from which she died on September 14, 2015. Ends