Cases dismissed because of time lapse

Many cases are being dismissed because they would have expired because of time lapse as guaranteed by the Constitution which states that suspects have the right to be tried within a reasonable period of time.

Recently, a woman claimed after 24 years that her father raped her when she was 10 and wanted the father prosecuted.

In her own admission, two of the witnesses she confided in after the alleged sexual assault had already died and the matter was struck off the roll because there were a lot of constitutional issues at stake for justice to be achieved fairly.

Human rights lawyer Jeremiah Bamu said in cases brought before the court there was need to balance the interests of justice and rights of an accused person.

“There are two conflicting interests which require protection. On one hand is the ideal that no crime should go unpunished and on the other hand the need to ensure a fair trial,” Bamu said.

“An accused person may be entitled in these circumstances to challenge the constitutionality of the prosecution on the basis of violation of his fair trial rights.

“If however, the accused person is to blame for the delays he cannot expect to benefit from the Constitution.”
In another case represented by Lovemore Madhuku another woman, 33, alleged that her father’s brother now, 67, raped her immediately after her dad’s burial. 

She was 14 years when the incident allegedly happened in 1999 and the uncle was 49 amid claims that after informing her pastor about the incident it was swept under the carpet.

Madhuku questioned why it had taken so long for the complainant to report the matter to the police.

He submitted that the rape allegation arose as part of the strategy by members of his family to force him to participate in witchcraft rituals and said it was impossible for his client to contemplate a scenario of a sexual relationship between him and the complainant whom in the African custom is his daughter.

According to section 23 of the Criminal Procedure and Evidence Act, it says: “The right of prosecution for any offence other than murder, whether at the public instance or at the instance of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse of twenty years from the time when the offence was committed.”

Another lawyer Liberty Gono said delay must be justified if a matter is to be set for trial years after the offence was committed.
“The police are guided by evidence gathered during investigations and where there is evidence that a crime has been committed then there is nothing stopping the matter from being tried…regard being made to an accused person’s constitutional right to be tried within a reasonable period of time,” Gono said.

The case of a Zanu PF activist charged with culpable homicide 17 years after the offence was committed fits into the debate of whether or not justice would prevail if the case is prosecuted after such a long time.

In this case two of his co-accused persons have died, some witnesses and evidence has vanished from the scene.
A determination is still to be made on whether the case proceeds to trial or not.
— Tarisai Machakaire

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