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The criminal case heard by Harare high court judge Munamato Mutevedzi and two assessors concerned a man killed by a group of other men allegedly for having stolen a cellphone from one of them.
According to the prosecution, the three accused beat the deceased – he was not named in the judgment – hitting him on the head with an empty beer bottle, then kicking and jumping on him and ‘repeatedly stepping’ on their victim’s neck and chest while he lay unconscious.
Though the three accused pleaded not guilty, Mutevedzi convicted them all. But it is the judge’s lengthy remarks about witness statements made to the police that are likely to be remembered and reported on, rather than the details of the trial itself.
‘Misrepresentations by the police in witness statements’
These comments came just after he recorded the evidence and cross-examination of one of the witnesses in the case, Biggie Kakondowe. Defence counsel grilled Kakondowe about the original statement he had given to the police. Kakondowe said he hadn’t made the statement and that the signature at the end of it wasn’t his. In fact, he claimed, he had ‘never officially given any statement to the police though he had accompanied them for indications’ [pointing out procedures].
At this point, the judge said he wanted to deal with an aspect of many criminal trials that was cause for concern, namely ‘misrepresentations by the police in witness statements and the unreasonable expectation by many legal practitioners that a witness statement must contain virtually everything that he/she knows about the case.’
The judge stressed such a statement was ‘simply an individual’s recount of the facts of a case under police investigation’, a ‘synopsis’ of the witness’s account of events.
Torrid badgering
‘We have noted sometimes with dismay, as witnesses undergo torrid badgering about little and often inconsequential inconsistencies or supposed omissions in their statements to the police.’ The courts had also seen witnesses who completely ‘disowned’ statements allegedly made to police.
The frequency with which that happened had left the courts ‘convinced that something untoward is happening at the time witnesses’ statements are recorded.’
The judge continued: ‘Police officers are reminded that investigation of a case does not mean fabricating the evidence of witnesses by adding or subtracting what the witnesses would have told them. The duty of a police officer is not to nail suspected offenders by any means necessary. Rather it is to present the truth.’
English a ‘second language to almost all of us’
Police weren’t supposed to ‘vet’ the evidence of witnesses but to let them tell their stories as they perceived things happening.
Witnesses often gave their testimony to the police in the vernacular and that was later translated into English, the courts’ official language. But English was, ‘to almost all of us, a second language,’ he said.
It was almost inevitable that parts of a witness’s testimony could get lost in translation. Sometimes statements produced in court cases ‘are written in incredibly bad English through which the courts have to work hard to decipher the meaning.’
‘Bordering on an illegality’
To make matters worse, when statements given originally in the vernacular were translated to English, ‘no comparison is ever made to ensure that nothing was lost.’
Witnesses who were ‘overly questioned’ about their statements tell the court that they understand no English at all, and could make no sense out of the English version of their statements.
In the judge’s view, it would be ‘prudent’ for investigating officers to keep the original vernacular versions of witness statements. These were, after all, the original statements, he stressed. To make someone who doesn’t understand any English sign a statement, written in English, to the effect that he or she ‘vouches’ that this is the original statement written by them, was ‘a clear misrepresentation of facts’, he said. In fact, it was ‘wrong and borders on an illegality’.
Artificial discrepancies
Ideally, a witness should sign the original vernacular statement, while the English translation should simply indicate that the witness had signed the original.
The situation was made worse by the rules of evidence that allowed a court to assess the credibility of a witness ‘on the basis of the differences between their statement to the police and their testimony in court.’
Defence lawyers quickly latched onto what were on in fact ‘artificial discrepancies and perceived inconsistencies’. This in turn could lead to judgments based ‘not on the truth of what happened, but on administrative frailties’ caused by police investigators.
Height of duplicity
But the judge said there was an even more ‘intriguing’ problem highlighted by the witness in this case: he didn’t say there were ‘misrepresentations’ in his statement, but that he had never made any statement to the police at all and that the signature on the statement wasn’t his. He said that he’d simply ‘narrated’ his story to the investigating officer and his colleagues.
The judge continued, ‘It would appear the officers … in the comfort of their offices at their own time decided to make their own statement which they never bothered to show to the witness.’ They either found someone to sign it or signed it themselves.
This would be ‘height of disingenuity and duplicity’ by an investigating officer, he said.
Witness was clearly honest
In the case being considered by the judge, the witness was clearly honest about what he had seen, and the court refused any suggestions that the testimony was tainted by inconsistencies between his statement to the police and his evidence in court.
Many of these remarks applied to a second witness as well, who had given an original statement in the vernacular. The police had however written it out in English ‘which he could neither read nor write’ and then asked him to sign, which he did.
‘I have already dealt with the impropriety of this police method,’ the judge commented.
‘Shambolic recording’ of statements by police officer
When the investigating officer in the case gave evidence, defence counsel took him to task ‘about the shambolic recording of witnesses’ statements’, recalling the witnesses who had denied making or signing statements attributed to them.
The investigating officer merely made some ‘lukewarm responses’, said the court, showing that he was ‘at best inefficient and at worst totally unconcerned with his work.’
Allegations of seriously shoddy work by police are not new to Zimbabwean courts, but the comments by the judge in this case are unusual, particularly since the trend is simply to believe the version put up by the police.
No court remedy in ‘political’ land case
The judge in this case, a former chief magistrate, Munamato Mutevedzi, has something of a reputation for controversial decisions. In 2023, he refused to deal with a case that came to him in the high court, challenging the government’s seizure of land from a Zimbabwean. He said such matters were political rather than legal, and that someone unhappy about the expropriation of their land had no court remedy because the courts were prohibited from adjudicating such disputes.
Another case, also decided in 2023, caused concern among activists working to stop violence against children: a woman who had beaten her 12-year-old son to discipline him, was charged with murder after the child died. The judge however said that beating problem children wasn’t criminal when the intention was to ‘discipline wayward children’ and that any reasonable parent who believed in corporal punishment would have done the same thing. ‘Our conclusion is that the accused assaulted the deceased in the normal course of parental discipline,’ he ssaid.
These and other decisions may have caused concern. But his latest comments about the failure of police to do their duty in relation to witness statements, and his suggestion that vernacular statements, made by witnesses, be kept by the police since they were the original, should find wide support.
