A HIGH Court judge has blasted police for violating provisions of the Constitution, saying they risk being rendered useless in the wake of an escalating crime rate in the country if they don’t reform.
Bulawayo High Court judge, Justice Nicholas Mathonsi, made the remarks following an appeal against conviction and sentence and by Bukhosi Khuboni
Khuboni and three unnamed accomplices were arrested by the police after they were falsely incriminated without sufficient evidence linking them to the alleged offences.
The quartet was convicted of 12 counts of unlawful entry and theft by a Bulawayo regional magistrate. They were sentenced to 18 years in jail, four of which were suspended on condition of good behaviour. Six months were further suspended on condition they restitute the complainants the stolen money.
Khuboni and his accomplices were part of a gang that terrorised Bulawayo residents in the western suburbs by breaking into their homes at night and robbing them of their valuables.
They used violence and ordered their victims to cover their heads with blankets before robbing them.
Justice Mathonsi’s anger was directed at Francis Masuku and Chrispen Maplanka, the two detectives who investigated Khuboni’s case.
The judge said the two cops did shoddy investigations when they only interrogated Khuboni and his accomplices before forcing them to identify the allegedly homes they had broken into for indications.
If the police service in this country does not reform or remain determined to bury heads in the sand in typical ostrich style when the courts repeatedly advise it to re-adjust its ways of doing business in line with the requirements of the new constitution order, then it runs the genuine risk of being rendered ineffective in the face of what appears to be escalating criminal activity among communities,” said the judge.
Justice Mathonsi said police were disrespecting the constitutional rights of suspects.
“Many times the police force has been advised to comply with the law when conducting investigations and in particular to respect the rights of arrested people for the successful prosecution of criminals. Arrested and accused persons also have rights enshrined in the Constitution of the country, which cannot be derogated,” he said.
The judge said the courts have a duty to uphold and protect the rights of the generality of society.
Justice Mathonsi said a lot of dangerous criminals are being let off the hook because investigators appear to ignore the constitutional rights of suspects.
Justice Mathonsi said the reliance on the identification of the accused persons by the complainant was fraught with irregularities.
“The appellant (Khuboni) was never taken to an identification parade. All that police did was to invite the complainants to the police station and ask them whether the appellant was one of the persons who had robbed them. It was no identification at all,” he said.
“A trembling witness whose door has just been broken down at night and is asked to cover her head with blanket cannot be said to be capable of good identification.”
Justice Mathonsi ruled that there was no reliable evidence upon which Khuboni could be convicted in the other counts where he was not even found in possession of the stolen property.
He set aside conviction and sentence for the 10 counts and dismissed the appeal against conviction and sentence in two counts.
“Effectively, we uphold the sentence of a total of three years imprisonment but will alter it slightly in respect of the suspended portion of it. Of the three years imprisonment, six months is suspended on condition of future good behaviour while one month is suspended on condition he restitutes the complainant $9 by 31 December 2017,” ruled Justice Mathonsi.
Khuboni, who was a self actor, argued that the evidence by State witnesses was not credible.
The State, through Ms Nonhlanhla Ndlovu, conceded that there was no evidence linking Khuboni to the offences in all counts except for count nine and 10 where he was found in possession of the stolen property.
The court heard that on November 16 in 2015 at around 3AM, Khuboni and his three accomplices went to Ms Priscilla Sibanda’s house in Nkulumane 5 suburb where they chopped the door with an axe to gain entry.
The four men threatened to kill the complainant as they demanded money. They robbed her of a Samsung cellphone, two radio speakers, $100 and two handbags before they fled.
They were arrested two weeks later and some of the stolen property was recovered at Khuboni’s house.