Dionne Kanyowa
A 53-YEAR-OLD man Tirivashoma Chigwaja has had his 19-year custodial sentence for allegedly raping a 13-year-old quashed after the High Court declared a mistrial after it found procedural irregularity when he was convicted.
In reviewing the sentence after an appeal was lodged last week, Justice Tawanda Chitapi ruled that Chigwaja had a constitutional right to a fair hearing, saying the procedural irregularity had the effect of nullifying the whole trial.
“A failure to comply simply means that the trial is not procedural in accordance with the law. Can such an omission and or irregularity be remedied? It cannot be remedied because S86 (3) (c) of the constitution provides that no law may limit the right to a fair trial,” ruled Chitapi.
However, Chitapi went on to mention that the setting aside of the custodial sentence did not translate to an exoneration on Chigwaja’s part.
“However, his luck may be short lived because the setting aside of the conviction and sentence is not an acquittal. The prosecutor-general will retain his prerogative to institute a fresh trial against the accused,” said the judge.
Chigwaja was accused of raping a 13-year-old girl in 2015 at Nyamugomba Farm in Chinhoyi around 11pm.
He is said to have sneaked into the then juvenile’s blankets and raped her whilst strangling her
Chigwaja allegedly threatened to kill himself if the juvenile ever told anyone.
The alleged victim reported the rape to her brother and true to his threat, Chigwaja attempted suicide by drinking poison, but he did not die and was arrested.
During trial at the provincial magistrates’ court, a sobbing Chigwaja reportedly pleaded guilty to the rape charge.
It is against this background, that the High court noted an irregularity in the conviction procedure.
Although, the court noted that the lower court was correct in convicting after a guilty plea, it also noted that the lower court had failed to follow the procedure in doing so.
