The High Court commenced hearings yesterday regarding an application from businessmen Mike Chimombe and Moses Mpofu, who are seeking a formal referral to the Constitutional Court over their claims that their rights are being violated by the presence of assessors aged over 70 in their criminal trial.
Chimombe and Mpofu are facing allegations of embezzling US$7 million, and their trial was paused earlier this month after they raised significant constitutional concerns. Their defense team, led by Professor Lovemore Madhuku, presented arguments questioning the constitutionality of the court’s composition, specifically targeting Section 6 of the High Court Act. This section allows for the appointment of assessors without specifying an age limit, which the defense contends contradicts constitutional provisions that set a maximum age of 70 for judges.
Madhuku emphasized that, while the Constitutional Court mandates a maximum age of 70 for judges, this limit should extend to assessors as well. “The existence of a provision in the High Court Act permitting assessors to exceed the age of 70 suggests that this act is unconstitutional,” he stated. Therefore, the team is advocating for these questions to be referred to the Constitutional Court for further examination.
Advocate Tapson Dzvetero, also representing the defendants, raised additional concerns regarding the High Court’s refusal to consider the accused’s appeal based on their indictment, arguing that this refusal could violate their constitutional rights.
Notably, the defense team opted to withdraw several issues previously intended for referral, including the live streaming of the trial, expressing satisfaction with the broadcast arrangement but dissatisfaction with its handling.
The prosecution has yet to respond formally to the defense’s application, as the defense is continuing its submissions. The hearing has been tentatively scheduled to resume on October 29.
Chimombe and Mpofu argue that the lack of a specified maximum age for assessors in the High Court Act is inconsistent with constitutional stipulations, which now allow a maximum age of 75 for judges following a recent amendment. In High Court criminal cases, a judge is accompanied by two assessors, who participate equally in voting on factual questions.
The prosecution counters that there is currently no law restricting the age of assessors in High Court trials, suggesting that the defense’s request for a referral to the Constitutional Court lacks merit. This fundamental point could impact the outcome of the referral request, as the prosecution maintains that the application is technically flawed.
The Customary Law and Local Courts Act of 1990 also permits the appointment of assessors in community courts without age restrictions, indicating a broader legislative context. While the High Court Act does not specify age limits for assessors, the Constitutional Court may still choose to consider the application if it raises significant constitutional issues.
The prosecution argues that Chimombe and Mpofu’s application for a Constitutional Court referral is fundamentally flawed, which may influence the court’s decision moving forward.
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