Source: Madzibaba Ishmael granted US$1 000 bail -Newsday Zimbabwe
Madzibaba Ishmael ChokurongeraJAILED apostolic sect leader Madzibaba Ishmael Chokurongera, who is serving a 20-year prison sentence for rape, has been granted US$1 000 bail pending appeal by the High Court.
High Court judge Justice Neville Wamambo ruled that Chokurongera’s appeal raised arguable points that could potentially overturn the conviction or lead to interference with the sentence.
As part of his bail conditions, Chokurongera must report three times per week to the CID Law and Order section in Harare.
Chokurongera was arraigned on three counts of rape, but was acquitted on two counts.
In his appeal, he argued that the trial court erred in convicting him based on DNA results, despite the State’s allegedly failure to prove the chain of custody of the samples.
He further argued that the court wrongly convicted him without evidence from the complainant, resulting in reliance on what he termed an inadmissible sexual complaint.
Chokurongera also challenged the court’s findings on the complainant’s age, arguing that the court incorrectly ruled her birth certificate was not authentic and instead relied on age estimation, despite evidence to the contrary.
He also disputed the trial court’s conclusion that the complainant had been subjected to religious indoctrination, arguing that no evidence on record supported such a finding.
The State opposed the bail application, saying it had presented evidence from all witnesses who handled the DNA samples, which were delivered safely and in good condition.
Prosecutors further argued that the issue of religious indoctrination was raised by a witness whom the lower court found credible.
They added that the authenticity of the birth certificate did not affect the conviction for the charge on which Chokurongera was found guilty.
The State also argued that the case was novel, noting it involved allegations where no complaint of rape had been made by the complainant or her guardian.
However, Justice Wamambo said the trial record contained no evidence of non-consensual sex between Chokurongera and the complainant.
The judge said the circumstances as found by the trial court were not directly testified to and were mostly implied.
“At the time of the alleged dates of rape and trial, the age of consent was still 16 years old. Without evidence of non-consent, the applicant could be found (guilty) of contravening s 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23],” he said.
“I say could in the sense that the issue of the DNA handling will also have to be unpacked by the appeal court. I am of the considered view that several issues arising, including the absence of a rape complaint, the DNA sample handling and the issue of the age of the complainant give the applicant prospects of success on appeal.
“I have noted in passing that the length of the sentence passed on the face of it appears rather lengthy, especially considering that no portion of the sentence was suspended.
“In any case, considering the finding of prospects of success on appeal being present, the sentence may be interfered with on appeal.”
Justice Wamambo added that appeals were generally heard without much delay, as they were tied to a convicted person’s constitutional right to liberty.
“In the circumstances, I am of the considered view that the applicant should be granted bail pending appeal. I note, however, that the bail quantum ought to be revised upwards in the light of the gravity of the offence that he stands convicted of. To that end, the bail quantum is hereby raised to US$1 000,” he ruled.
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