BIKITA West legislator Munyaradzi Kereke wants the Prosecutor-General’s Office to pay legal costs incurred in his private prosecution, saying he was not responsible for the refusal by that office to publicly prosecute him.
Kereke’s case had to proceed through private prosecution after suspended Prosecutor-General Johannes Tomana refused to prosecute him, saying there was no evidence linking the legislator to the offence.
Regional magistrate Mr Noel Mupeiwa sentenced Kereke to 14 years behind bars for raping his 11-year-old niece six years ago, but set aside four years for five years on condition he does not commit a similar offence within that period.
Through his lawyers, Kereke is refusing to pay legal costs sought by private prosecutor Mr Charles Warara, saying he was neither the one who barred his prosecution nor the one who runs the PG’s office.
His lawyer Mr Marshal Hondo Chitsanga said there was no reason why the PG should not be ordered to meet the costs.
“The prosecution should show good cause why the PG should not be burdened by such costs,” he said.
“The court, in it its judgment, clearly stated that the convicted person did not act unlawfully when he was not publicly prosecuted. The decision to decline prosecution was made by the PG not our client.”
“He could not have possibly attended trial after the PG, who has authority, had declined his prosecution,” he said.
Mr Chitsanga added that there was no evidence which was led to show that Kereke influenced the PG’s decision not to prosecute him.
“Your worship, in fact my client wanted the proceedings to come to finality,” he said.
In his application, Mr Warara wants Kereke or the PG’s office to pay the costs and expenses incurred.
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Mr Warara urged the court to grant the costs on a higher scale.
“Our application is that the court ought to direct that the convicted person pay the costs of the prosecution,” he said.
“If the court was to order costs against the PG’s office, the court must take into consideration the conduct of the PG. It was not a simple matter. It took years for the PG to react. It took a lot of time for the convicted person to be brought to book and a lot of effort for justice to finally take place. The PG’s conduct, which he displayed left a lot to be desired.”
He added: “Kereke was the beneficiary of the misconduct by the PG to defy justice and if it was not for the apex court, he would be roaming freely in the streets. The court should order him or the PG’s office to pay the costs and the costs must be punitive.”
In response, Mr Chitsanga said it was unfair to order Kereke to pay the money on a punitive scale.
“Surely, to order costs on a punitive scale would be tantamount to punishing the convicted person twice on a single case,” he said.
The defence also argued that Mr Warara’s application was misplaced adding that the court became functus-officio when it jailed Kereke.
“I want to point out that once the court gave its ruling, it became functus-officio and the matter ended there. The prosecution does have the remedy which lies at the superior courts,” he said.
“My reading of the provisions of Section 22 of the Criminal Procedure and Evidence Act, which the prosecution is basing on does not empower a part to make an application ordering the costs. It is therefore, my view that the application is entirely misplaced.”
However, the prosecution accused the defence of blowing hot and cold after it made a counter claim of costs on the count in which Kereke was acquitted.
Kereke was acquitted on charges of indecently assaulting the victim’s elder sister.
In his counter application Mr Chitsanga said: “In the event that this court finds that the prosecution’s application is properly before it, it is my humble submission that the court should not lose sight that my client was acquitted on the other count,” he said.
He added: “According to section 22 (1) of the Criminal Procedure and Evidence Act, the prosecution is also liable to compensate the accused the costs he incurred in the proceedings.”
In response Mr Warara said: “I do not know why the defence is blowing hot and cold. I am surprised that he is also making an application for costs before the same court which he said does not have the powers to entertain an application of this nature.”
Mr Warara said there was no basis in which the prosecution would have filed an application for costs before a determination was passed.
After hearing submissions from both counsels, Mr Mupeiwa said since there was a possibility that the PG’s Office would be ordered to pay the costs, there was need for a response from the PG’s Office.
“The PG or anyone from his office should be called to this court to respond,” he said.
He remanded the matter to Monday next week to allow the PG’s Office to respond through written submissions or by coming to court and respond orally.-Herald
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