The Constitutional Court (ConCourt) has thrown a life-line to a death row inmate by ordering a fresh trial of his murder case after ruling that the judge who sentenced him to death had interfered with his constitutional right to a fair trial.
BY CHARLES LAITON
The convict, Danis David Konson, filed an appeal at the ConCourt after Bulawayo High Court judge Justice Lawrence Kamocha, sent him to the gallows for killing his girlfriend Siphathisiwe Ncube by shooting her in the presence of a police officer.
However, in his appeal, Konson argued Justice Kamocha interfered with his trial by asking more questions than the prosecutor.
According to the court record the prosecution asked Konson 144 questions but Justice Kamocha asked him “a record” 146 questions.
In ordering a fresh trial, ConCourt judge Justice Anne-Marie Gowora ruled that Justice Kamocha had violated Konson’s right to a fair hearing.
“The applicant’s right to a fair hearing in accordance with section 69 (1) of the Constitution has been violated by the proceedings in case no HBC 158/13…it is ordered that the matter be and is hereby remitted to the High Court in Bulawayo for trial denovo (afresh) before a different judicial officer,” Justice Gowora said in a judgement that was agreed by eight other judges.
“As submitted by Mr Nkomo, the inescapable conclusion that emerges from the record is that the judge descended into the arena and as a consequence he deprived himself of the detached impartiality required of a judicial officer.
“The fairness of the trial was clearly undermined. He had prejudiced the issues of the trial that was before him.”
Justice Gowora said a judicial officer had an obligation to ensure that a trial was conducted in a manner that was fair to all the parties before him.
“To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interest of justice,” Justice Gowora said.
“In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.
His right to a fair hearing as guaranteed under section 69 (1) was clearly violated.”