Justice Patel suspends sodomy trial

High Court Judge Justice Bharat Patel on Thursday 17 November 2011 suspended the trial of two Mbare residents, Lionel Girezha and Ngoni Shanya, who were charged with committing sodomy after their lawyers successfully sought an order staying the criminal proceedings at Mbare Magistrates Court which were being heard in a non-conducive environment.

Justice Patel granted the order after the Mbare residents and their lawyers from Zimbabwe Lawyers for Human Rights (ZLHR) and the Law Society of Zimbabwe (LSZ) filed an urgent chamber application in the High Court protesting that the Mbare residents’ constitutional rights to a fair and impartial trial were fringed upon after Mbare Resident Magistrate Brighton Pabwe proceeded with their trial under an intimidating, restricting and fearful environment. This was after some rowdy ZANU PF supporters intimidated, harassed and threatened five lawyers for executing their duties.

The militant ZANU PF supporters on two occasions in October harassed and threatened to assault five human rights lawyers Jeremiah Bamu, Belinda Chinowawa, Kennedy Masiye of ZLHR and Charles Kwaramba and Obey Shava of Mbidzo, Muchadehama and Makoni Legal Practitioners who had represented the two Mbare residents.

The ZANU PF youths, who at one time were led by Jim Kunaka, the party’s Harare province youth chairperson ambushed the lawyers as they left the court room and interrogated them for being “unpatriotic”, by representing the two Mbare residents against President Robert Mugabe’s pronouncements castigating the practice.

The forced blockade compelled lawyers to seek relief from the High Court so that the trial of Girezha and Shanya before an independent and impartial tribunal could not be subject to intimidation, duress or intimidation by any external party or force.

In their application which was heard by Justice Patel on Thursday, the Mbare residents, ZLHR and the LSZ, who were represented by Advocate Zvikomborero Chadambuka, Bryant Elliot, Sylvester Hashiti, Dzimbabwe Chimbga and Jeremiah Bamu asked for the matter to be referred to another Magistrate, who has not been familiar with the case or who has not heard evidence already. The lawyers wanted earlier proceedings conducted at Mbare Magistrates Court to be quashed and for the matter to be moved to another court and resume afresh or for proceedings to be held in camera.

The lawyers argued that proceedings in the Mbare Magistrates Court have been compromised to such an extent that it is highly unlikely that a free, fair and impartial decision/trial can be arrived at and that the presiding Magistrate Pabwe may also be subjected to the same undue pressure and intimidation.

The residents and their lawyers argued that there is reasonable fear that Magistrate Pabwe will not act independently were the trial to continue in the present circumstances.

They said efforts by the court to ensure safety and security of the legal practitioners have not been effective nor have they been respected by the mob that has to all intents and purposes become a law unto itself.

Lawyers said despite two letters of complaint which were written to Magistrate Pabwe by ZLHR executive director Irene Petras, Magistrate Pabwe has proceeded with the trial in the absence of the defence counsel to the detriment of the residents’ constitutional right to legal representation and fair trial.

The lawyers asked the High Court for an order that compels the conduct of a fair trial at Mbare Magistrates Court or as an alternative for the superior court to explore other available options as moving the court to another venue or ordering that the matter be held in private with members of the public excluded.

The respondents, who include the State represented by the Attorney General’s Office and Mbare Resident Magistrate Pabwe made a no show in court in spite of having been served with the urgent chamber application.

Post published in: Politics

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