The Court of Appeal has reserved judgment in a case in which a murder accused, Moses Kobedi, has been waiting for 10 years to be tried.
Appearing before a panel of five judges at Gaborone High Court yesterday, state prosecutor, Farayi Mahwite admitted negligence on their part for allowing Kobedi to freely walk the streets for a decade without being tried.
Mahwite conceded that they had failed to act within a reasonable time to prosecute the accused, but insisted there was no question of him being treated unfairly. He told the court that there was no timeframe for murder.
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 but was never allocated dates even though the accused kept enquiring.
Although admitting a lapse on their part, Mahwite argued that Kobedi’s case was not extra-ordinary one, therefore it did not mean he would not be tried for the alleged murder.
“There was that negligence on our part but it doesn’t mean he can run away from being prosecuted and especially in the event that all witnesses are there,” he said.
He said Kobedi would still get a fair trial even after 10 years and that there was no time frame for murder cases.
However the judges did not spare him, noting that he failed to justify the delay. They told him not to make reference to any other case to justify their incompetence.
The judges said the state had prejudiced the accused for over 10 years because he had not been able to find a job as he was on bail for a serious offence, which he was never tried for.
“This is a clear case of prejudice and for that do not compare this case with others especially those outside this country because here you don’t even have anything, or any factors that might justify the delay. There is nothing that helps your case as to why there was a delay,” the judges concurred.
The judges said the court has to look at the element of reasonable time, which is a factor for a fair trial and wondered if the accused will be accorded such. “This whole time he was there, so he was supposed to be tried within a reasonable time because, also with time, human memory fades and that might be a problem during trial,” they said.
Defence lawyer, Sidney Pilane had earlier made submissions on permanent stay of prosecution arguing that his client has been prejudiced for long.
He 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.
The judges added that in such cases where an accused has been prejudiced, an order for compensation could be made for the time suffered while awaiting trial.
The bench consisted of Justice Monametsi Gaongalelwe, Justice Isaac Lesetedi, Justice Seth Twum, Justice Lord Alastair Abernethy and Justice John Foxcroft.