COURT WATCH 10/2021
[9th June 2021]
The Last of the Glenview 29 Finally Acquitted – Ten Years Later
On Friday 4th June the Supreme Court issued a judgment [link] upholding the appeal of the last four accused persons in the Glenview Murder case, acquitting them of involvement in a killing that took place 10 years ago. And so they finally received justice, but only after two of them had served eight years in prison.
Background to the Case
Veritas issued many bulletins about the case: see in particular Court Watch 16/2013 of the 25th September 2013 [link] and the bulletins cited in that Court Watch. What follows is a brief summary:
The case began in May 2011 with the death of a police officer in the course of a melee which arose after the Police had tried to break up a gathering organised by the MDC at a shopping centre in the Harare suburb of Glenview. Ten months later 29 members of the MDC were arraigned in the High Court for trial before Justice Bhunu on charges of murder and public violence. The trial did not begin until three months later, in June 2012, and it was interrupted by frequent and lengthy adjournments. The State evidence was hotly contested by the defence lawyers, and in several respects it was inconsistent and unreliable. Twenty-two of the accused persons were discharged (i.e. acquitted) in September 2013 after the State closed its case, and when Justice Bhunu finally delivered the court’s verdict in September 2016 – more than four years after the trial began – he found three of the seven remaining accused persons guilty of murder, one of them guilty of being an accessory to the crime of public violence, and acquitted the others. The three convicted of murder he sentenced to 20 years’ imprisonment each, the one convicted of being an accessory he sentenced to a fine.
All four accused persons who had been convicted appealed to the Supreme Court against their convictions and sentences, but despite this the three accused (now appellants) who had been sentenced to imprisonment began serving their sentences. One of them (Ms Yvonne Musarurwa) was released in March 2018 under a presidential amnesty for women prisoners [Clemency Order 1 of 2018 – link], but the other two (Mr Tungamirai Madzokere and Mr Last Maengahama) remained in prison.
The appeal was finally heard on the 3rd March last year, and the Supreme Court delivered its judgment 15 months later, on the 4th June this year. As we said at the beginning of this bulletin, the Court set aside the convictions and sentences of all four appellants. The Court’s reasons were as follows:
- Justice Bhunu had convicted the four appellants on the basis of common purpose, a rule of common law which holds that where several people are associated in an unlawful enterprise they are all liable jointly for a crime that is committed by any one of them and falls within their common purpose. In other words, an act of any one of them is deemed to be the act of all of them.
- The Supreme Court held that when the appellants were alleged to have committed their crimes this rule had been abolished by the Criminal Law Code, and the new rule under section 196 of the Code imposed liability only on persons who were actually present when the crime was committed.
- The evidence of the State witnesses was contradictory and did not establish that the appellants were present at the scene when the police officer was killed.
- The appellants should all have been acquitted at the close of the State case, and the evidence they gave at the trial did nothing to incriminate them.
Hence the convictions and sentences of all the appellants had to be set aside.
If ever there was a case to which the maxim “Justice delayed is justice denied” applies, this is it:
- The trial began more than a year after the alleged murder occurred.
- The trial took more than four years to complete.
- The appeal was heard three and a half years after the trial.
- The Supreme Court took more than a year to deliver its judgment, despite the Judicial Service Code of Ethics stating that judgments should not be delayed by more than 180 days except in “unusual and exceptional circumstances” – and there did not seem to be any such circumstances in this case. The judgment did not elucidate any difficult points of law, though there was an inconclusive and irrelevant discussion about whether the Constitution had revived the common-law doctrine of common purpose after its abolition by the Criminal Law Code.
- The 29 accused persons were constantly denied bail so they spent most of the period before and during their trial in prison. The three who were convicted of murder began serving their sentences immediately the sentences were announced and they were not released on bail after their appeals were noted. Although one of them was released under an amnesty, as we have noted, the other two were only freed after the Supreme Court judgment was announced – after they had served eight long years in prison. Their acquittal will not bring back those lost years or wipe away the suffering they and their families have undergone.
What Recourse do the Acquitted Persons Have?
Our law takes a hard-nosed, not to say harsh, attitude towards people who are prosecuted for criminal offences and found to be not guilty.
Costs are not awarded to either side in criminal cases, so accused persons who are acquitted are not entitled to be reimbursed the expense they may have incurred in engaging a lawyer to defend them. By the same token, incidentally, the State (i.e. the prosecution) is not entitled to be reimbursed its costs in prosecuting people who are found guilty.
There is no government scheme for compensating people who are acquitted after being tried or imprisoned. They have to bear their losses as best they can unless they can claim damages.
Generally speaking our courts will award damages to compensate people who have suffered harm or loss only if the harm or loss occurred through someone else’s fault or illegal conduct. Hence accused persons who are found not guilty after a criminal trial will not be entitled to damages unless their trial came about because of someone’s fault – for example, because someone maliciously reported them to the police, or because the police arrested them without reasonable suspicion, or because a prosecutor maliciously prosecuted them without adequate evidence. It is not enough for the person simply to show that he or she was prosecuted and then acquitted: there must be proof that the prosecution and imprisonment came about through someone’s unlawful conduct, whether deliberate or negligent. Only if there is that additional proof can a court award damages against the person whose conduct caused the harm or loss, or against that person’s employer.
It would be difficult, though perhaps not impossible, for the accused persons in the Glenview murder case to persuade a court to award them compensation for the very real harm they suffered. If they claimed they were wrongly arrested or that their prosecution was improperly motivated, their claim would be answered by the fact that Justice Bhunu, a judge of the High Court, did find their guilt proved beyond a reasonable doubt – even though, according to the Supreme Court, his finding was based on a misunderstanding of the law and manifestly unreliable evidence.
The judge himself cannot be sued for the errors in his judgment, even though they had dire consequences for the accused, because the law protects judicial officers from being sued for wrong or erroneous judgments unless they were prompted by spite, ill-will or improper motive – which in this case it would be impossible or at least difficult to prove.
And yet it does seem unjust, contrary to all notions of fairness, that people who have been imprisoned for eight years for a crime they have not been proved to have committed should get no recompense for what they and their families have suffered.
Perhaps the delays that marked their trial and its aftermath might open a way to some remedy. The delays were inordinate and far beyond what is expected of an efficient judicial system. If all the State officials involved – police officers, prosecutors, magistrates and judges – had carried out their duties promptly and effectively the case could have been completed within 18 months at most, trial and appeal included. At one or more stages in the proceedings State officials must have been dilatory or negligent. Those officials, or rather their employer the State, should be obliged to compensate the accused.
Section 69(1) of the Constitution states that everyone accused of a criminal offence “has the right to a fair and public trial within a reasonable time …” This is usually taken to mean that accused persons must be brought to trial within a reasonable time, but it should be construed more broadly to cover the whole trial process, from first appearance in court to verdict and sentence. If section 69(1) is construed in that way then the Glenview accused can claim that their constitutional right under the section was violated – and that would give added weight to any claim for damages they might bring against the Government.
The Glenview murder case has highlighted serious deficiencies in our law.
Delays in criminal proceedings
There is no adequate mechanism to prevent or minimise delays in criminal proceedings, particularly after trials have begun. Section 167A of the Criminal Procedure and Evidence Act gives a remedy to persons who suffer from unreasonable delays before trial, but not to persons whose trials drag on excessively. If a magistrate takes too long over a trial the accused can apply to the High Court to review the proceedings, but there is no equivalent procedure to remedy delays in High Court trials. There should be.
As we have said, people who are acquitted in criminal trials are not entitled to compensation, even if they have expended large sums of money on their defence or spent long periods in prison, unless they can prove that what they have lost or endured was caused by the wrongful conduct of someone else. This can work great hardship where, as in this case, people have spent long periods in prison. There is a good case for establishing a government fund to pay compensation to people who have suffered imprisonment for lengthy periods, whether before or after their trials, and have then been acquitted.
In the case of Mr Madzokere and Mr Maengahama, it is to be hoped the Government will make ex gratia awards to them to compensate them for all the suffering they have been through.