DPP delay murder accused walks free

Mpho Mokwape | Monday August 10, 2015 15:23

Failure by the DPP to commit Moses Kobedi to the High Court in time to stand trial for murder he allegedly committed in 2003 was recently declared unconstitutional by the Court of Appeal (CoA) bench of judges.

Kobedi is alleged to have murdered Geoffrey Moruakgomo in 2003 at Dinokwe ward in Serowe and was detained for 10 months before being released on bail. The case was committed to the High Court in 2013, 10 years after the murder was committed but was never allocated dates even though the accused kept enquiring.

In 2014, Kobedi applied to the High Court for permanent stay of prosecution saying he was not accorded a trial within reasonable time but was dismissed and he later proceeded to the CoA.

When acquitting the murder accused, Lord Alistair Abernethy said the prosecution by the State before the High Court was unconstitutional in that it infringed the accused’s constitutional right to be afforded a fair hearing within a reasonable time.

“The trial is permanently stayed and the appellant is discharged and acquitted of the offence he has been charged of before the High Court. 

“It is my opinion within judicial knowledge that the passage of time can dim memories. The prejudice resulting from the delay is obvious and is one of the reasons for the reasonable time requirement set according to the Constitution,” he said.

Abernethy further said that though he recognised that where there was a charge murder, there was also strong public interest in bringing the matter to trial and if proven guilty convicting the accused, it was also proper effect to protections given to each member of the public charged with a criminal offence.

Meanwhile, Kobedi’s attorney Sidney Pilane had made submissions on permanent stay of prosecution arguing that his client has been prejudiced for long.

Pilane submitted that 10 years was a long time and that Kobedi would not get a fair trial if prosecuted saying that the state only acted when the family of the accused enquired about the case in 2012.

“My client was released on bail on May 2004 and since then he’s been reporting himself to the police and he kept asking when he will be tried but he was never given an answer and it was when the family enquired about the case that my client was re- arrested and detained for two months then on June 2013, he was then properly indicted to the High Court for trial,” he said.

Pilane told the court that on September 2013, Kobedi applied for permanent stay of prosecution as there was no progress to his case and that he was afraid that he would not get a fair trial after such a long time. For the prosecution, state attorney Farayi Mahwite though admitting negligence on their part for allowing Kobedi to freely walk the streets for a decade without being tried said he could still be tried fairly.

Mahwite conceded that they had failed to prosecute the accused within a reasonable time but insisted that there was no question of him being treated unfairly, adding that there is no timeframe for murder.