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Supreme Court throws out Mutoko RDC appeal against corruption sentence



THE Supreme Court has thrown out an appeal by former Mutoko Rural District Council chief executive officer and planning officer who were jailed three years each for corruption following their arrest in 2020.

Peter Sigauke and Innocent Mukwekwe were jailed by a Mutoko magistrate following their conviction for criminal abuse of office after they unlawfully subdivided land which was meant to benefit less privileged Mutoko women.

Sigauke and Mukwekwe were employed by Mutoko Rural District Council as CEO and planning officer respectively.

They were each convicted in the of three counts of criminal abuse of duty as public officers.
All counts were taken as one for purposes of sentencing and each was sentenced to 36 months imprisonment, and 12 months were suspended on the usual conditions of future good conduct.

The charges against the appellants arose from the manner in which they dealt with and deposed council land around the Chinzanga Beerhall.

They were alleged to have subdivided the land into a number of stands without a council resolution authorising the subdivision and without ministerial approval.

They sold the stands to Gabriel Karimazondo, Tinashe Mazarura and Sarah Chipunga.
Sigauke and Mukwekwe sold the stands to the three purchasers with the intention of showing favour to them as the sale of the plots was not advertised as was required and the purchasers therefore did not compete with anyone.

Each of the three purchasers paid the purchase price to Mukwekwe.

The purchase price was not remitted to council. No receipts were issued to the purchasers.
Prosecutors proved that the two acted in connivance and benefited from the sales.
During the trial, the state led evidence from 13 witnesses.

Among these witnesses were the chairperson of Mutoko Rural District Council, councillors and the duo’s former co-workers.

The cumulative effect of the evidence led from these witnesses was that the procedure for the sale of council land was not followed.

The procedure was that council had the ultimate decision on the sale of land to interested parties.

It would pass a resolution on how it intended to dispose of the property.

It would seek the approval of the relevant minister before the sale, the court heard.

Once the approval was at hand, it would task the management committee to implement the approved resolution.

The witnesses testified that council had resolved that corner shops be created at the Chinzanga Beerhall stand.

These were to be allocated to local women to carry out their income-generating projects.

Unbeknown to council, the management committee altered its resolution by creating the stands which were sold to the three purchasers. The witnesses testified that the creation and subsequent sale of the stands was not sanctioned by the minister.

It was further testified that there was no record at Mutoko Rural Council of any of the three transactions or of any payments made by the purchasers.

Gabriel Karimazondo, Tinashe Mazarura and Sarah Chipunga testified on how they purchased the stands and paid the full purchase price for the stands to the second appellant either directly or through intermediaries.

Karimazondo testified that he approached Mukwekwe and inquired from him if there were any stands available for sale.

Mukwekwe referred him to Councillor Jembere who confirmed the availability of vacant stands near Chinzanga Beerhall.

Jembere however referred him back to Mukwekwe for the prices of the stands.

Karimazondo approached Mukwekwe at the council offices.  The court heard Mukwekwe told him that the stand which was available was valued at US$8 000.

“He paid the purchase price in two instalments of US$4 000 each. Payment was made to Mukwekwe at the council offices.  He did not get any receipts for the payments,” the state proved.

When he next visited the council, following up on the receipts, Mukwekwe told him that he was required to submit a plan for the buildings that were to be constructed on the stand.

An offer letter would thereafter be issued.

He paid Mukwekwe US$250 for preparation of the plan.

When he followed up with him on the matter of the receipt, he was given the approved plan and an offer letter dated 21 October 2019.

The offer letter had been signed by Sigauke.

“He then commenced construction of the building as per the plan by digging a foundation.

“He delivered some bricks on the stand.

“He was surprised when the second appellant told him to stop work as there was a misunderstanding amongst some councillors over the stand,” the court heard.

After some time, police approached him in 2020 regarding the purchase of the stand.
He again approached Sigauke and Mukwekwe asking for his receipts.

Mukwekwe directed him to some officer at the council offices to sign documents and get his receipts.

When he arrived at the council offices, he met the officer who identified himself by name.

He was made to sign a lease agreement.  The agreement was however dated 5 July 2019 although he signed it in 2020 and after police had commenced their investigations into the allegations leading to the conviction of Sigauke and Mukwekwe.

“He was subsequently advised by the second appellant that Council had resolved that the stand be leased to him for a period of between five and ten years and that the lease agreement would be renewable after that period.”

Karimazondo maintained that he had at all material times dealt with Mukwekwe.

He further maintained that he received the offer letter in October 2019 before signing the lease agreement in 2020 although the agreement was dated 5 July 2019.

Karimazondo’s evidence was corroborated by the evidence of Rabson Jembere.
Mazarura gave a similar testimony.

Sigauke and his accomplice pleaded not guilty.  They were the sole witnesses in their own defence.

They denied selling any stands to the trio and receiving any payment for the stands.

They further denied acting contrary to their duties.

Their defence was that they were members of the management committee of Council.

“Full council had resolved to delegate powers to management to enter into lease agreements with those who needed commercial stands on the piece of land on which Chinzanga Beerhall stood,” they said.

However, the trial court found that the evidence of the three purchasers confirmed that the stands had been sold to them.

They had respectively paid the purchase prices to Mukwekwe who played a pivotal role in the sale of the stands.

Although the purchasers were not issued with receipts, their evidence was substantially corroborated by documentary evidence, being the offer letters which reflected that full payment had been made.

The sale of the stands was not in accordance with the laid down procedures and the sales were intended to favour the purchasers.

Disgruntled by the trial court’s conviction and sentence, the appellants appealed to the High Court.

The High Court held that it is trite that findings of fact cannot be lightly interfered with on appeal in the absence of gross irrationality.

It held that there was no basis for interfering with the judgment of the trial court as the decision of that court was not irrational. It held that the trial court was correct in all its findings.

This resulted in the two filing an appeal at the Supreme Court.

The Supreme Court  bench comprising Justices Tendai Uchena, Felistas Chatukuta and George Chiweshe dismissed the appeal, ruling that the High Court was correct in upholding the sentence imposed by the trial court.

“The appellants were each convicted of three counts of abuse of office.

“Nothing was recovered, so the appellants benefited from the commission of the offences.

“It would have brought the administration of justice into disrepute in the circumstances of this case, had the appellants been sentenced to either community service or the payment of fine.
“An effective custodial sentence was warranted,” ruled the court. — STAFF WRITER.

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