HARARE – Businessman Bishop Jeche, facing fraud charges alongside East River Investments, is contesting the handling of a housing transaction case by retired magistrate Hosea Mujaya.
Jeche believes Mujaya’s approach is unfair and seeks intervention from the Constitutional Court.
He believes the magistrate is now acting on the whims of outside forces while ignoring genuine circumstances before the court.
Mujaya is known for his hard stance in court which has resulted in some of his decisions being taken up for review in superior courts.
Jeche has been certified by two specialists to be demented and in depression with bipolar which affects several aspects of his life including concentration, responding to questions and remembering things.
His lawyers Admire Rubaya and Malvern Mapako then sought to have the matter postponed on health grounds to allow him to recuperate which the magistrate who has come out of retirement to handle it declined.
The application came after specialist Psychiatrist, Dr Anesu Isabel Chinoperekwei told the court that Jeche was not fit to stand trial as he has suffered dementia and was now relying on his wife to remember things.
She said Jeche has become forgetful to the extent of forgetting simple things such as remembering if he had eaten.
Dr Chinoperekwei said Jeche’s condition was getting worse as he was now slow to process things that a question had to be repeated several times for him to respond and in the process forgetting what he would have been asked.
She said a period of two to three months was enough to assess Jeche’s condition.
She came to court after another medical expert Dr Charles Nyamukachi testified on Wednesday stating that he diagnosed Jeche with dementia and depression among other chronic ailments stating that a part of his brain had been wiped that he cannot remember things.
Magistrate Mujaya, however, indicated that the trial was going to proceed despite the doctors’ testimony saying the decision lies with him and not the doctors ordering that the matter continues this Friday.
The lawyers have however mounted an application to have the matter referred to the appex court saying the court’s decision amounts to a violation of their client’s right to a fair trial by forcing him to give evidence while he has a mental impairment.
The State opposed the application pushing to have the matter proceed. The magistrate eventually postponed the matter to March 21 for the lawyers to lead evidence in support of their application.
In their application, the lawyers said the court’s decision to disregard expert testimony and rely on its eyes to assess Jeche’s condition is a violation of his constitutional rights.
“The Psychiatrist clearly stated that the 2nd Applicant (Jeche) was being managed for bipolar depression and dementia which clearly adversely affected his memory resulting in memory loss.
“The Medical Practitioner of 14 years experience clearly did not certify that the 2nd Applicant (Jeche) was ready to conduct his defence for the medical ailments affected his ability to comprehend the issues that would be required of him wherein he would resort to his wife for purposes of getting assistance since he could not tackle the most critical issues on his own,” Rubaya argued.
It is also argued that the court’s decision to refuse the postponement violates Jeche’s right to a fair trial.
They argue that the court has now descended in an arena which it has no expertise in by engaging in a matter involving the health of a suspect while disregarding medical testimony.
“The Regional Magistrates Court’s decision to clearly disregard the expert opinion of the psychiatrist, as evidenced by the quoted statement in its ruling “the taste of the pudding is in the eating” raises serious concerns regarding the Applicants’ right to a fair trial.
“This approach could be interpreted as a disregard for professional expertise and an attempt by the Court, without the proper, necessary specialised training in Psychiatry and or medicine, to assess the second applicant’s fitness or competence to testify in his defence and stand trial through an “experimentation” during the actual defence case.
“By proceeding without considering the psychiatrist’s expert opinion and recommendations, the court risks prejudicing the accused persons, compromising the fundamental principle of justice being dispensed without bias or prejudice,” he argued.
The defence argue that the magistrate, who is now retired, is working under pressure to conclude the trial and they believe this pressure is prejudicial to their clients.
“I am aware that the trial magistrate is a retired Regional Magistrate who is coming out his retirement to deal with the matter.
“He indicated during trial that there had been administrative plans for him to simply sit for three days which was the 27th, 28th and 29th of February 2024 only but in an unprecedented manner he indicated that he was donating his time to deal with this matter thus he postponed the matter to today (the 1st of March 2024).
“That clearly exposes the undue and illegitimate pressure which has been brought to bear on him wherein there is a requirement for him to stop at nothing until the trial is finalised as soon as those pressuring him want.
“I assert that there is clear evidence that justice is now being sacrificed on the altar of expediency to the extent of the Honourable Court compelling the applicants to proceed to testify in defence for purposes of just ticking the boxes that the trial had been finalised will result in irreversible prejudice to the accused persons’ detriment. I assert that rushed justice is no justice at all,” Rubaya stated in his affidavit.
The defence have since raised several questions which they believe need determination by the apex court.
They seek to determine whether the continuation of trial East River Investments and Jeche in his current and chronic intellectual impairment, memory loss and bipolar depression is consistent with the constitutional guarantees.
They also seek to have it determined whether the refusal by retired magistrate Mujaya, to postpone the trial proceedings pending the further medical review after two months does not violate the right of the accused persons to a fair hearing.
They also seek to have it determined whether the court’s refusal to consider and rely on the expert evidence of the medical psychiatrist, opting instead for its own pedestrian observations through a “try and error” approach in a specialized and sophisticated medical field of psychiatry during the defence case, violate the right of the accused to a fair hearing.
