The High Court on Tuesday, 22 October, started hearing the application by businessmen Mike Chimombe and Moses Mpofu for a referral to the Constitutional Court regarding their rights, which they claim are violated due to assessors in their trial being above 70 years old.
The trial, involving allegations of US$7 million embezzlement, was halted earlier this month after constitutional questions were raised.
As reported by The Herald, the defence team, led by Professor Lovemore Madhuku, argued that the court’s composition was unconstitutional and sought to challenge Section 6 of the High Court Act, which allows for the appointment of assessors without an age limit.
The defence wants Section 6 struck off the statutes for contravening constitutional provisions.
It was confirmed that the assessors in Chimombe and Mpofu’s trial are above 70 years old, while the judge is below this age.
Professor Madhuku argued that the Constitutional Court’s age limit of 70 for judges should also apply to assessors.
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The case will continue with the Constitutional Court examining the validity of these constitutional arguments. Said Prof Madhuku:
The mere fact that there is a provision in the High Court Act, which allows assessors to be above 70, would mean that the High Court Act is unconstitutional. So we are seeking that referral of the questions to the Constitutional Court.
Advocate Tapson Dzvetero, in a joint application, requested the court to refer to the Constitutional Court the question of whether the High Court’s refusal to entertain the accused’s appeal on the basis of their indictment amounts to a violation of their constitutional rights.
The defence team dropped several issues they wanted referred to the Constitutional Court, including the permission given for live streaming the trial. Their clients were happy with the broadcast but not with the handling of the matter.
The prosecution has yet to respond as the defence continues its submission.
The hearing was tentatively adjourned to October 29 for continuation.
Chimombe and Mpofu argue that the High Court Act does not specify a maximum age limit for assessors, which they claim contradicts the Constitution.
The Constitution sets a maximum age limit of 70, now 75 following an amendment, for judges, and the two argue that this applies to all judicial officers on the High Court.
In all criminal cases tried in the High Court, a judge sits with two assessors.
The judge decides questions of law alone, while questions of fact are decided by majority vote, with the judge and assessors having equal votes.
The prosecution argues that there is no law limiting the age of assessors in High Court criminal trials.
Therefore, the prosecution claims that the application by the fraud-accused duo for a referral to the Constitutional Court has no merit.
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