Out of the blue, and after serving nearly 16 years of his 30-year sentence, a prisoner in one of Zimbabwe’s maximum security jails applied for bail pending an appeal. But there were two problems: there was no appeal pending - and there could be no appeal since all the records had mysteriously disappeared. Not even the name of the trial magistrate could be found. What was the high court to do?
This is a bizarre story, requiring something of a bizarre judgment. It concerns Tendai Chihera who, along with several co-accused, was convicted of armed robberies and sentenced to 30 years in the Chikurubi Maximum Prison in Harare.
Then, suddenly, during June 2019 Chihera applied, from prison, for bail. Giving reasons for this application, he said that he had tried several times to get the record of his trial, but without success: ‘The record of proceedings is not to be found.’
After many appearances and adjournments, Judge Tawanda Chitapi eventually decided to take the case and sort it out.
Counsel for the state had discovered some more details by then: a few months after sentence, one of Chihera’s co-accused was granted bail pending appeal and was released. He died a few months later. Another co-accused was released on medical grounds (no indication is given of when that happened) and he, too, died a few weeks after release.
Now, many years later, Chihera also wanted to ask for bail pending appeal No explanation was given as to why he waited 16 years to apply – on the other hand, counsel suggested, he might actually have made a similar application some time before, but that all record of that application had been lost.
State counsel explained the Catch-22 situation that had developed: Chihera had applied for bail pending appeal, but there was no appeal pending. The only reason there was no appeal pending was that the trial record was missing.
She went on to detail what she called ‘a mysterious occurrence’. As part of the search for the trial record she had looked in the record books where details were noted of those accused who made applications for bail: the name of one of Chihera’s co-accused is noted in the book, but ‘the page is torn where details are written’. In addition, the record held by the lawyer involved ‘also went missing’.
Counsel concluded: ‘Although it cannot be proved to a highest degree of certainty, the mysterious disappearance of the record … and any information relating to the applicant’s co-accused raises a lot of questions and a hint of underhand dealings by persons who have an interest in the matter.’
But in the meantime, said counsel, what was to be done? Could bail pending appeal be granted if there was in fact no appeal pending (due to the record being untraceable)? On what grounds could the court grant bail in such a case?
In a case decided by Zmbabwe's constitutional court during 2015, the judges had referred to what should be done where a record could not be reconstructed and where there had been a ‘suspicious disappearance of the record’. That court had held that these circumstances ‘cannot justify the grant of permanent stay of proceedings’.
However, counsel asked if the court should ignore a request such as that brought by Chihera ‘on a technicality’. Chihera had served almost three quarters of his sentence, ‘and surely by operation of law it would be prejudicial to allow (him) to continue serving the sentence when he want to appeal but cannot do that as a result of the disappearance of his record of proceedings.’
Judge Chitapi had instructed the registrar to detail the searches made of the record and when that was not done, he summoned the registrar and informed him that he was ‘not amused that the order had not been complied with’. The registrar said he would deal with the matter personally. That, however, took from 15 November 2019 to 4 December 2019, with several adjournments in between.
Once he had an affidavit that there was nothing to be found, the judge decided the matter had to be finalised. Clearly Chihera had a right to a copy of the record. Just as clearly, however, ‘the record is not only missing or lost but cannot be retrieved’ and it appeared it could not be reconstructed. There was not even any record of the name of the magistrate who had presided at the original trial.
Interests of justice
Judge Chitapi considered Kenyan and South African cases involving similar issues and concluded that in such matters courts had to approach a matter based on the interests of justice.
There was clear evidence that the record had been sent to the court in 2004 and had been received. But it had now disappeared.
The judge said he had to reach the conclusion that the system had been unfair to Chihera, but at the same time he had to question why Chihera had left it so long to apply for an appeal.
‘Be that as it may, the system too should have managed the record and appeal in a manner which guarded against loss.’
The judge said the most appropriate action, in his view, was ‘to leave it to the prosecutor in his discretion to institute a fresh trial if so minded.’
Stressing that his colleague, Judge Webster Chinamora had ‘painstakingly considered the novel situation which this presented’ and agreed with the order to be given, Judge Chitapi set aside the original, concluded proceedings against Chihera and left the question whether to start a new trial to the discretion of the prosecutor general.
He also ordered that if indeed a new trial were to take place and Chihera were to be convicted, the trial court should take into account the 16 years Chihera had already served.