Kereke costs case ruling date set

HARARE - Harare regional magistrate Noel Mupeiwa said he will make a ruling on the disputed issue of who is liable for settling costs incurred in bringing jailed rapist Munyaradzi Kereke to justice on August 19.

Kereke — a former Bikita West Zanu PF MP — is serving 10 years in jail after he was convicted of raping his 11-year-old niece at gun point.

Private prosecutor Charles Warara, who for six years fought to have the politician brought to justice, had submitted that according to section 22 (3) of the Criminal Law the magistrate had the discretion to either order Kereke or prosecutor general (PG)’s office to meet the costs.

However, acting PG Ray Goba’s office argued that suspended Johannes Tomana was supposed to address the court since he held the office when Kereke was prosecuted.

“In order that the court may properly determine the question of costs, I respectfully submit that it is fair and reasonable that the then attorney general whose decision is impugned be afforded an opportunity to be heard in person,” Goba said.

“I further submit that an informed appraisal of the circumstances of that decision is only possible after giving him audience.”

Kereke’s lawyer, Erum Mutandiro, argued that Warara’s application was wrongly placed as it sought to make the court review its own judgment.

His contention was that since the magistrate had not considered the issue of costs during sentencing, it had to fall away.

“The court did not make an award as to costs because prosecution did not pray so…it (court) therefore cannot be faulted in any way because it is trite that courts do not grant what has not been prayed for,” Mutandiro said.

“The prosecution has remedy in the superior courts. It is not in dispute that these very proceedings were initiated by the (then) prosecutor general, the decision to decline prosecution was made by him and there was no way the accused person would have forced himself to trial,” he said.

“The court ought to show a good reason why the prosecutor general should not be burdened by such costs. In fact, ordering costs on a punitive scale would be tantamount to punishing the accused person twice.”

Last week, the National Prosecuting Authority tendered an affidavit compiled by Morgan Dube — a principal law officer who was formally in charge of the Criminal Division in Tomana’s office — distancing themselves from the issue.

Dube claimed that he handled Kereke’s record under Tomana’s instructions until the matter was eventually set down for prosecution.

But Warara said “The PG has not explained why he should not pay. How did the set down office get involved? The requirements regarding procedures followed when police come with an accused person were not adhered to”.

“Dube deliberately omitted explaining how he got involved in a matter where an accused person is charged at a police station and could have come to the area public prosecutor or vetting office at magistrates’ court,” he said.

“They know the procedure but to cover up they are now claiming they are not to blame. This court cannot allow government officials to get away with misconduct that borders on corruption.”

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