The High Court has ruled that jailed former Air Zimbabwe Holdings chief executive Peter Chikumba’s application for bail pending appeal should be heard, saying it has a bearing on the proceedings leading to his conviction and imprisonment.
Justice Joseph Martin Mafusire made the ruling after the prosecution raised a preliminary point objecting to Chikumba’s fresh bid for bail.
He said Chikumba’s argument that he was wrongly convicted cannot be discounted and was fundamental to the legitimacy of the proceedings in the lower court. The judge was of the view that chances were strong that the proceedings under which Chikumba was convicted were a nullity at law.
“The point being brought by the applicant (Chikumba) is so fundamental,” said Justice Mafusire. “It goes to the root of the charge and conviction at the magistrate’s court. If it turns out that the applicant was wrongly charged and convicted he must be entitled to his liberty immediately.”
Justice Mafusire agreed with the defence led by Advocate Thabani Mpofu that the application arose after it was discovered that Chikumba was wrongly convicted in the magistrate court having been designated as a public officer when in fact he was not. “None of the parties during trial and even on bail hearing before Justice Tagu and before Justice Mawadze in the initial bail application was alive to it,” said Justice Mafusire.
To this end, the judge ruled that Chikumba’s application for bail pending appeal on changed circumstances was properly before the court and wanted to deal with the merits.
After the ruling, prosecutor Innocent Muchini immediately sought a postponement saying he needed time to prepare a comprehensive response. The application was granted after Adv Mpofu instructed by Admire Rubaya indicated that he was not opposing the postponement. The application will be heard next week on Tuesday.
Earlier on the judge took prosecutor Muchini to task over his objection and asked him to show the court the proviso in the statutes, which defined Chikumba as a public officer. Muchina had a torrid time and was at pains to defend the conviction. “You’re treading on dangerous territory,” said Justice Mafusire.
Air Zimbabwe Holdings, said the judge, was not a parastatal, but a private company established in terms of the Companies Act. Justice Mafusire referred to several cases in which it was settled that Air Zimbabwe Holdings was a private company. He said a look at the trial proceedings and records of proceedings before two other judges on the same case clearly showed that the question of whether Chikumba was a public officer was never dealt with.
The judge also accepted Adv Mpofu’s submissions that the law was clear that the application he brought could be made based on facts which were not placed before a judge who determined the previous application. It was Adv Mpofu’s argument that when the original application for bail pending appeal was made, Chikumba, the state, the lawyers, trial court and the judges who dealt with the previous bail applications were all not alive to the matter he raised.
In the end the question whether Chikumba was a public officer was never determined, argued Adv Mpofu. “Once there is that allegation there is changed circumstances. It’s sufficient to make a case of changed circumstances,” he said. “There is a point of law going to the root of the proceedings in the lower court warranting the court to decide the application.”
The prosecution had raised a preliminary point arguing that the application was improperly before the court. It was also argued that the High Court had no jurisdiction to hear the matter which it has already determined. Chikumba was convicted and jailed seven years effective for criminal abuse of duty under Section 174 (1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).
A charge of criminal abuse of duty is only applicable to public officers as defined in the country’s statutes. In view of the changed circumstances, Chikumba believes that his prospects of success on appeal are high and seeks to be freed on bail since it is clear that Section 174 of the Criminal Law Codification and Reform Act, excluded Air Zimbabwe Holdings (Private) Limited workers.