Harare – The case of three MDC activists convicted on Tuesday for murdering police inspector Petros Mutedza took a new twist yesterday after the defence counsel made striking submissions leading to the release of one of the convicts.
Phineas Nhatarikwa — found guilty for being an accessory to the murder — was freed after their lawyer Beatrice Mtetwa poked holes in High Court judge Chinembiri Bhunu’s judgment. Bhunu went on to shelve the sentence of the convicts for an indefinite period.The judge convicted Tungamirai Madzokere, Last Maengahama and Yvonne Musarurwa on murder with actual intent, after ruling that the State managed to prove its case beyond any reasonable doubt against the three.
However, making submissions in mitigation, Mtetwa said the evidence led by the State did not identify the actual perpetrators, adding that the doctrine of common purpose that was used by Bhunu to convict her clients was not part of the Constitution.
“It is a tool that was used in Rhodesia to suppress blacks in Rhodesia, it was also a tool used in South Africa during the Apartheid era. The doctrine of common purpose must not be used to suppress the rights of the people as enshrined in the Constitution.
“This doctrine of common purpose is not in any of our statutes,” Mtetwa said.
She further said that there was need to prove the guilty of her clients beyond any reasonable doubt, as opposed to convicting them simply by association.
Mtetwa said that if her clients are to be sentenced based on the doctrine of common purpose, she would argue that their rights have been infringed upon.She also said that Zimbabwe has been suffering from politically-motivated deaths, disappearances and torture by known assailants, adding that concerns have been raised pertaining to the selective application of the law.
Mtetwa urged the court to rise above that assumption and pass a sentence that is not based or determined by her clients’ political affiliation.
“There is no evidence before you that the deceased met his death at the hands of the MDC members. Being an MDC member is not a crime. It is not a crime to wear an MDC T-shirt . . .,” she said.
Appearing on behalf of the State, Edmore Nyazamba urged the court to impose the highest maximum possible sentence, which even calls for a death penalty. He said the State did not lose an ordinary person but a law enforcement agent on duty. “Life was lost and life cannot be replaced,” he said.
However, Mtetwa said the sentencing options offered by the State were not possible, considering that the person who fired the fatal blow was not identified.The trio that remained in custody was part of a group of seven people that remained in the dock after 21 others were acquitted in September 2013. One of the suspects, Rebecca Mafikeni, died while in custody.
The court was yesterday fully packed and several politicians, including Elton Mangoma, Elias Mudzuri, Nelson Chamisa, Thokozani Khupe and Douglas Mwonzora.