ZIMBABWE – THE Constitutional Court yesterday gave High Court judge Justice Charles Hungwe 30 days to explain the delay that saw a convicted murderer, robber and Church Pastor Jonathan Mutsinze spending 12 years in remand prison awaiting sentence.
The embattled judge, who was in the headlines over the past few days after his 55-year old paramour died minutes after being intimate with him in Bindura, is already the subject of allegations of misconduct now before President Mugabe after Chief Justice Godfrey Chidyausiku wrote to the President in terms of Section 87(3) of the Constitution that deals with the removal of judges from office
The 56-year-old Mutsinze, who was bishop of Jerusalem Apostolic Church in Marondera before his incarceration on charges of car theft in 1998, has been languishing in remand prison for the past 15 years without knowing his fate following failure by High Court Judge Charles Hungwe to sentence him over the past 11 years.
Mutsinze was arrested and convicted of car theft in 1998 and sentenced to six years and eight months, and while serving his sentence he was tried on other charges of murder and armed robbery committed in 1998. Justice Hungwe presided over the trial that began in 2002 before it was concluded in March 2003.
Mutsinze was convicted of murder with actual intent, extenuation was done before the matter was remanded to another day for sentencing. Justice Hungwe is said to have retained the court record which has not been seen again.
Meanwhile, the accused has been languishing in remand because the matter is considered partially heard since it did not go for sentencing.
To compound Mutsinze’s woes, the tapes pertaining to the case were also erroneously erased before the matter was completed, making the production of a duplicate record virtually impossible.
Chief Justice Godfrey Chidyausiku said Justice Hungwe should write an affidavit giving reasons for the delay and if he fails to do so the lawyers representing Mutsinze may apply for a contempt order against him.
The same court also directed the registrar of the High Court to file another affidavit with the Constitutional Court on whether or not the missing court record could be reconstructed. “The matter is postponed sine die (indefinitely).
“The court directs that within 30 days, the registrar files an affidavit on the status of the record in the matter, in particular the state of reconstruction of the record.
“The presiding judge (Justice Hungwe) furnishes to this court the reasons for the delay in the conclusion of this matter within the given period of 30 days . . .” ruled the Chief Justice.
The court further directed the registrar of the Constitutional Court to re-set down Mutsinze’s challenge soon after Justice Hungwe and the High Court registrar have filed their affidavits.
The National Prosecuting Authority represented by Mr Edmore Nyazamba hesitated to ask Justice Hungwe to depose an affidavit explaining the delay before they pleaded with the court to issue a directive.
“As the State, we will find ourselves in a precarious position to ask a judge to explain or give reasons for the delay.
“May you issue an order in that respect,” said Mr Nyazamba. Mr Nyazamba was assisted by chief law officer Mr Chris Mutangadura while Mr Tazorora Musarurwa of Mambosasa Legal Practitioners represented Mutsinze.
The Chief Justice berated the NPA for failing to stand its ground in dealing with such issues. He said the NPA had such powers and urged the State to be strong and brave enough to execute its duties in future.
“In future, you do not come to this court for an order simply because you are scared of a judge. You only come to court when you have tried and failed to get the information required.
“You are an office with such a responsibility and powers and in future we expect you to act with more force and vigour. “You do not have to put tails between your legs fearing to execute your duties,” Chief Justice Chidyausiku said.