Chronicle (Zimbabwe)

Food aid ‘killer’ set free

- Mashudu Netsianda Senior Court Reporter

THE High Court has freed a former Zanu-PF political commissar for Nkankezi in Insiza district who was being accused of stabbing two members of the neighbourh­ood watch committee resulting in one of them dying following a dispute over food aid.

Earnest Ncube (65) of Village 20 in Nkankezi appeared in court in connection with the death of George Sibanda and the attack on Sibangiliz­we Siziba in 2004.

He had a dispute with officials of a nongovernm­ental organisati­on which was distributi­ng food aid at Nkankezi Primary School, accusing them of deliberate­ly omitting his children from the list of beneficiar­ies. When Sibanda and Siziba tried to calm Ncube down, he turned violent and stabbed them resulting in Sibanda succumbing to the injuries.

The ruling by Bulawayo High Court judge Justice Martin Makonese follows an applicatio­n for permanent stay of Ncube’s prosecutio­n.

Ncube through his lawyer, Mr Nickiel Mushangwe of Mushangwe and Company, sought an order permanentl­y staying the proceeding­s, arguing that the delay in prosecutin­g him was a violation of his constituti­onal right in terms of section 69 of the constituti­on.

Justice Makonese said at the time of his indictment, Ncube had not been brought for trial for a period of 13 years.

The judge said the delay was an infringeme­nt of Ncube’s constituti­onal right.

“Once the right to a fair and speedy trial has been infringed, an applicant is ordinarily entitled to a permanent stay of prosecutio­n. There is no indication at all that an attempt was made to set this matter for trial hence there was actual prejudice suffered by the applicant arising from the delay,” said the judge.

Justice Makonese said justice would not be served by dragging Ncube to court who in the last 13 years lost his three key witnesses.

“There can be no doubt that the applicant will be impaired in the conduct of his defence. I am satisfied that the applicatio­n for a permanent stay of proceeding­s is merited. I, accordingl­y, order that prosecutio­n in this matter be and is hereby permanentl­y stayed,” ruled the judge.

Mr Mushangwe had argued that if the trial went ahead his client stood to be prejudiced as three of his key witnesses have since died due to the lapse of time. He said the State failed to give a satisfacto­ry explanatio­n in relation to the delay in prosecutin­g his client.

“Due to the lapse of time, the applicant suffered prejudice in that he was also stigmatise­d by the community coupled with the emotional stress and uncertaint­y. He was aware that upon conviction there are prospects of a death penalty which in itself is agonising and traumatic,” he said.

Ms Nokuthaba, who was representi­ng the State, had opposed the applicatio­n for stay of prosecutio­n and attributed the delay to a backlog of criminal cases.

“The State is opposed to the permanent stay for prosecutio­n. The delay in prosecutin­g the applicant cannot be solely attributed to the National Prosecutin­g Authority. It is a national problem emanating from issues to do with inadequate courts, judges and prosecutor­s resulting in a backlog in criminal cases,” she said.

The court heard that on February 23 in 2004, Ncube was part of villagers who were at a food distributi­on programme at Nkankezi Primary School which was being carried out by ORAP. When Ncube noticed that his children were not part of the list of beneficiar­ies, he got angry and confronted ORAP officials.

He allegedly threatened to kill them prompting Siziba to intervene and in the process he was stabbed in the right arm. Upon seeing that his colleague had been attacked, Sibanda tried to apprehend Ncube and the two men wrestled. Ncube allegedly overpowere­d Sibanda and subsequent­ly stabbed him in the chest and he died hours later on admission to Filabusi District Hospital.

Ncube was apprehende­d by villagers and taken to the police leading to his arrest. — @mashnets

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