REPORTABLE(53) MUNYARADZI KEREKE
v
(1) FRANCIS MARAMWIDZE
(2) THE PROSECUTOR GENERAL N.O.
SUPREME COURT OF ZIMBABWE
UCHENA JA, CHIWESHE JA & KUDYA JA
HARARE: 15 NOVEMBER 2022 & 31 MAY 2024
– T.W Nyamakura and L.Madhuku, for the appellant
– C.Warara, for the first respondent
– No appearance for the second respondent
KUDYA JA:
[1] The appellant appeals against the dismissal of his appeal against conviction and sentence by the High Court (“the court a quo”) on 21 May 2019.
[2] On 11 July 2016, the appellant was convicted by a Regional Magistrate (the trial court) at Harare of one count of rape. He was sentenced to 14 years’ imprisonment of which 4 years imprisonment was suspended for 5 years on the customary conditions of future good conduct. Dissatisfied, he unsuccessfully appealed to the court a quo, against both conviction and sentence. [3] The second respondent (the Prosecutor General), did not participate in the appeal. He filed a letter with the Registrar of this Court in which he indicated that he would abide by the decision of the court.
THE BACKGROUND
[4] The matter proceeded by way of a private prosecution by the f irst respondent, in his capacity as the guardian of NT (the complainant). He was appointed the legal guardian of the complainant and her elder sister [TT] on 9 December 2008. He is the two girls’ maternal grandfather and father of their mother Chipo. He is also the father of Philippa and Kingstone (the husband of Sally). On the dissolution of the girls’ biological parents (Chipo and Richard)’s customary union, Chipo’s parents (the first respondent and Elizabeth) took the two girls into their custody at their Greendale house. At all material times Chipo resided in the United Kingdom, while Full transcript of Kereke rape appeal Richard lived in the United States of America.
[5] Richard is the elder step-brother of Patience, the wife of the appellant. Richard’s mother died when he was 7 years old. His Munyaradzi Kereke (right) was guarded 24 hours a day by security guards. father married Patience’s mother Anna and begot Patience and Calvin.
[6] T he appellant is a polygamist. He consummated a customary union with Patience in 2007.
[7] At the time of the alleged rape, the appellant had two sons (MM and KM) with Patience, who were 4 years and four months old respectively. He rented a house for them in Vainona Harare. The house T he private prosecution prevailed against indomitable hurdles placed in its way by a generally lackluster investigation by the police. It also overcame the spirited refusal by the Prosecutor-General to prosecute the appellant and his unlawful refusal to issue a certificate nolle prosequi (not wish to prosecute), to the first respondent. T he requisite certificate constitutes a condition precedent for the institution of a private prosecution by a private party imbued with a substantial and peculiar interest in the matter. See Sengeredo v S CCZ 11/14 at p 4; In Re: Prosecutor-General of Zimbabwe on His Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR 107 (CC) at 113; Telecel Zimbabwe (Pvt) Ltd v Attorney General of Zimbabwe NO 2014 (1) ZLR 47 (S) and Levy v Benatar 1987 (1) ZLR 120 (S) at 121G. In addition, the appellant fervently fought to avoid the institution of the private prosecution until his antics were stopped by the Constitutional Court. By the time the private prosecution commenced in earnest, a period of 5 years had elapsed from the time the alleged offence was committed.
[8] T he record of proceedings shows that after the allegations came to light, under the guise of fighting corruption, the appellant (in person or by proxy) embarked on a no holds barred crusade against senior ZANU (PF) politicians, his former boss and governor of the Reserve Bank of Zimbabwe (RBZ or central bank), the former director of the RBZ’s Financial Intelligence Unit, the Director-General of the Central Intelligence Organization and one of his divisional directors. The record further shows that the appellant also levelled unfounded and unproven allegations of misconduct against any one he perceived to be working in cahoots with the complainant, including one David Butau, the first respondent and his wife and the private prosecutor. It must be recorded, in his favour, that the record further shows that he flighted in the public print media a public apology to his former boss and governor after his conviction by the trial court.
THE TRIAL
[9] A total of 15 witnesses testified at the trial. These comprised eight prosecution witnesses, six defence witnesses and a single witness called by the trial court. A total of 19 documentary exhibits were produced.
[10] The appellant was charged, firstly, with one count of indecent assault on TT (born on 1 September 1995) and secondly, of one count of rape on NT (born on 4 June 1999). The two girls are sisters. The appellant is married in a polygamous union to their paternal aunt, Patience. He did not stay with her but would occasionally visit her at will. The aunt often invited them to her Vainona home over weekends and school holidays to “play” with her two sons.
[11] The respective dates of the alleged indecent assault and rape were an unknown date in March 2010 and 21 August 2010. T he two sisters were 14 and 11 years old. When they testified on 11 January 2016, they were 20 and 16 years old.
[12] The trial court acquitted the appellant on the indecent assault charge on the basis that the prosecution had led insufficient evidence to sustain a conviction beyond a reasonable doubt. The court found that TT did not make her first report of indecent assault to the two witnesses who testified on that report. She had done so to Phillipa, who was not called to testify. It therefore disregarded the evidence of these two witnesses for the reason that it constituted inadmissible hearsay. The trial court proceeded to assess whether or not her testimony, standing on its own, established the offence of indecent assault. This is how it did so at p 29 of its judgment:
“We are left with the evidence of complaint only. Let us see if it is satisfactory enough and reliable to find a conviction on its own. The fact that she had to wait for the suggestions of Phillipa to report the assault will obviously have an effect on her credibility especially when we consider that she was grown up aged 15 years. She was also aware that what was done to her was wrong. Also accused never threatened her. Also, when she was testifying, she failed to relate much detail surrounding the sexual assault. She could not even tell the court the position she was in when the accused allegedly fondled her breasts and buttocks and kissed her; she could not even tell the position the accused was in when he allegedly fondled her. She could not recall whether they were sitting or standing. Her evidence lacks detail which is not expected of a girl of her age and the level of her education at the material time. This coupled with the fact that she waited to be asked whether she was sexually abused by the accused makes her evidence to be unsatisfactory.
The evidence of the prosecutor as regards count 1 falls far short of proving the accused’s guilty (sic) beyond any reasonable doubt, since there is so much doubt which remains in the mind of the court. Like whether the complainant was really indecently assaulted by the accused or she felt she cannot be left alone when the second complainant was relating her ordeal to Phillipa and Sally.” T he trial court was therefore acutely aware of the requirements for assessing the credibility of a complainant. It did not, however, make any adverse findings of credibility against TT. The uncontested acquittal makes it unnecessary for this Court to advert any further to the evidence pertaining to this charge.
[13] The complainant gave a graphic account of the rape incident. She was good with babies. Her aunt invited her to her Vainona home to play with her infant sons, especially the younger one. She was there between 20 and 27 August 2010. She shared the bedroom with her paternal grandmother, Anna. Anna slept on the bed while she slept on a floor mat. She was awoken from sleep early on Sunday morning (22 August 2010) at 3 am by her aunt to baby sit and coo the restless and crying KM to sleep. The aunt went into the kitchen to prepare food for the appellant, who sat in the sitting room and appeared to have just arrived at the house. She had to pass through the sitting room on her way to her aunt’s bedroom. She mentally noted the time from the wall clock, which was in the sitting room. She lulled the baby to sleep. She thereafter watched over him as she sat on the bedroom couch watching TV. She dozed off.
[14] She was awoken by the appellant. He took out a gun, placed it on the dressing table and demanded obedience from her. He sat next to her muttering some things she did not understand. He fondled her breasts and vagina and kissed her all over her face. He pushed her backwards, pulled her black and white dress up and pulled down her pair of peach panties to knee level. He inserted his penis into her vagina. He did some up and down movement. It was painful. He muffled her screams by clamping his hands over her mouth. The sound of footsteps from the lounge stopped him in his tracks. She pulled her panties up and ran to her bedroom. Her grandmother was fast asleep. Her dress was wet. She whimpered herself to sleep. When she woke up, she washed stains of blood from her dress, panties and sheets and hung them to dry on the washing line. She went to church in town by public transport. Her maternal grandmother (Elizabeth) attended the same church. When Elizabeth asked her if she was alright, she retorted that she was. She went back to Vainona, where she retrieved her dress and panties from the washing line and placed them in her bag. She later donated these two items together with other apparels to charity. She stated that she was in physical pain for approximately two days and that she resumed her normal walking gait after that period.
[15] On 23 August 2010, TT came to Vainona from a Joshua Generation Youth camp in Glen Forest. The complainant hinted to her about what had transpired and swore her to silence because she was uncomfortable to talk about it. The two sisters went back to Greendale on 27August 2010.
[16] On 30 October 2010, the complainant visited her maternal uncle Kingstone and his wife Sally in Avonlea, Harare. She told Sally in the privacy of her bedroom what had happened to her in Vainona. She testified that she was influenced by various radio and TV advertisements, which urged “victims of sexual abuse” to stop suffering in silence. She was comfortable with Sally. She, therefore, only wanted Sally to let her UK based mother to know what had happened to her. The complainant further permitted Sally to cascade the information to her husband on that day and to Philippa and her maternal grandparents on the following day. The complainant revealed the full details of what transpired in Vainona at her maternal family gathering held in Greendale, in the evening, on Sunday 31 October 2010. The first respondent invited Patience to that family gathering, but she was constrained to attend by transport difficulties. The first respondent duly reported the “rape’ at Highlands Police Station (HPS) late that night.
[17] The police at HPS recorded a scene report from the first respondent and a statement from the complainant, her sister and Sally until the early hours of 1 November 2010. The maternal family entourage accompanied a HPS policewoman to Parirenyatwa Hospital, where the two sisters were medically examined. Dr Chanakira examined the complainant and compiled a medical affidavit. He observed a broken hymen with two healed tears on her vagina. A digital examination by one finger elicited no response while two fingers caused her to wince. He concluded that penetration had been effected. The sisters were soon thereafter taken to Mbuya Nehanda Maternity hospital for counselling, and later to Sally Mugabe Hospital (Harare Hospital) for further management. They attended at Harare Hospital on 2 and 9 November 2010.
[18] The case was later transferred to Borrowdale Police Station (BPS), where the complainant was re-interviewed by Woman Constable Monica Kativhu. The officer-incharge, Chief Inspector Mbiringa conducted an inspection-in-loco at the Vainona home and drew various sketch plans on the indications of the complainant, TT, Patience, Anna and Calvin. He first drew the sketch plans from the paternal witnesses on 15 November 2010 before he drew the sketch plan from the two sisters, on 26 November 2010.
[19] The complainant’s version of the events that transpired before and after the rape incident was confirmed, in material respects, by the evidence of TT, Sally, the first respondent and Dr Chanakira.
[20] The court, acting in terms of s 232 of the Criminal Procedure and Evidence Act, called the evidence of the deputy head of Emergency and Casualty Department at Parirenyatwa hospital at the time, Dr Chiratidzo Lorraine Jeyacheya, to resolve the dispute of whether or not Dr Chanakira was on duty on 1 November 2010. She produced the duty rosters for casualty doctors for 30 and 31 October 2010 and 1 November 2010, which positively demonstrated that he was on duty during the graveyard hours between 12 am (midnight) and 8 am on 1 November 2010.
[21] The prosecution also called the evidence of Mirirai Chiremba, the then Director of Financial Intelligence and Security at the Reserve Bank of Zimbabwe and his deputy in charge of security Grasham Muradzikwa. The appellant was his superior and a “powerful man” in his position as an economic advisor to the central bank governor. The long and shot of Chiremba’s evidence was that a distraught appellant surrendered his RBZ issue CZ pistol, 22 rounds of ammunition and cleaning kit to him at around 7am on Sunday 22 August 2010 at the Harare Kamfinsa Bon Marche car park. The reason he proffered for surrendering it was that he had “a minor dispute with a relative”.
On Monday 23 August 2010, the appellant generated an RBZ Firearm Rationalization policy document. The document was backdated to 14 June 2010. The appellant coerced and directed Chiremba to back date the return and surrender of the pistol, ammunition and cleaning kit to 14 June 2010. Chiremba sought to surrender the pistol to his deputy who studiously refused to back date it. Resultantly, Chiremba kept the pistol in his own safe at the central bank. The pistol was still in his safe even as he testified in June 2016.
[22] Muradzikwa confirmed that he declined to back date the return of the pistol, for fear that it would raise audit suspicion. He further stated that his master firearms register showed that the appellant never surrendered, as he was required to do, the pistol to him even at the time he unceremoniously left the central bank in 2012. The witness’ records showed that the pistol was yet to be surrendered even as he testified in June 2016. He further asserted that, the purported rationalization policy only targeted the appellant and no one else at the central bank.
[23] The evidence of the two security gurus at the RBZ showed that the appellant had a pistol on Sunday 22 August 2010 at 7am
