THE High Court has delivered a landmark ruling in cases involving boat disasters and acquitted the Lake Chivero boat disaster crew that was slapped with effective five-year jail terms following the death of 11 children on the lake on Christmas Day three years ago.
They had been in jail for nearly three years. During the trial in 2011, It also emerges that the accident was caused by a combination of negligence, greediness, drunkenness and human error.
The boat crew – Joseph Abrahams and Fadil Ramon – were sentenced to effective terms of imprisonment by provincial magistrate Tendai Mahwe in 2012 after convicting them of being equally liable for causing the death of the children.
Ramon was convicted for claiming to be the "captain" of the boat, while his co-accused Abrahams was convicted for having assisted in the loading of the children on the boat.
However, on Wednesday this week, High Court judge Justice Charles Hungwe, in agreement with Justice Susan Mavangira, said a simple question to be answered in the matter was whether, other than the captain or master of a boat or ship, could anyone else be held criminally liable for a boating accident.
On the fateful day, their co-accused Enock Yolani Zulu, who was also jailed for the same offence, but reportedly released following amnesty on medical grounds, was the master of the boat.
The judges said the law regulating the operation, licensing and maintenance of the type of boat in question in Zimbabwe is the Inland Waters Shipping Act and the Inland Shipping Regulations 1971 of which in terms of Section 2 of the Act, the
definition of "master" was given as a person having command or charge of the vessel, and a person employed in a vessel other than a master was termed "crew" in terms of the same section.
"The fact is that, besides considering the common law concept on culpable homicide, he [magistrate Tendai Mahwe] ought to first have regard to the law governing inland shipping vessels . . . in my view, had he carried out this exercise, he would have realised that, as the law stands, only the master or captain or person in charge is criminally liable for any mishap on a water body," Justice Hungwe said.
"The person in charge is legally obliged to ensure that the number of people carried did not exceed the legal limit [Section 39 of the regulations]. He decides if there has been compliance with the law before the boat sets sail. He is knowledgeable on the law governing the vessel. Such vessel would not venture into the water without his permission.
"If he is not, for any reason, satisfied about the mechanical fitness of the vessel, he has the power to cancel the trip into the water. Therefore, he, and only he, bears all the responsibility for the safety of both the passengers and the crew. That this is the practice is confirmed by the recent Italian shipwreck of the Costa Concordia. Only the captain of this ocean liner is facing prosecution."
In concluding his judgment, Justice Hungwe said: "In the result, therefore, I find that the court aquo [the court from the appeal was taken] erred in failing to consider and apply the provisions of the Inland Shipping Act and the regulations made thereunder when it assessed the evidence during trial. Had it done so, it would have inevitably found that only the person in charge of the boat was criminally liable for this boating accident. That person is Zulu. The appellants [Ramon and Abrahams] were entitled to be found not guilty and to be acquitted."
Ramon and Abraham were represented by Hamios Mukonoweshuro.
===IN CASE YOU MISSED THE 2011 ARTICLE===
Esther Muronzi who survived the ordeal said the boat was so overloaded that it had to be pushed into the water because the engine could not sustain the weight of the load.
According to the 16 year old, who was a student at Queen Elizabeth High School by then, some people had initially suggested that they leave some people behind but the captain insisted it was not necessary.
"When we got to the middle of the lake, the captain said; "does anyone want to die?" We were all shocked by the question and we were scared. He then asked if anyone could swim and I raised my hand," Muronzi said. The traumatised teenager said the crew started laughing.
"He then told us that the dam was over 30 meters deep. Just before the accident, the driver just made a U-turn and the said: [If you do not know how to swim then you can kiss goodbye to your lives because the boat is sinking. I am saving my life.]
"The crew then jumped into the water and started swimming away and two other adults also jumped into the water. The crew left us to die and they didn't care about us," she said.
"After the boat capsized people were trying to swim but we could not get up because the boat would block our heads, we were all stuck under the boat. When the driver and his colleague jumped into the water, they swam to a boat which was nearby and returned to Fish Eagle where they had picked us up. They did not attempt to rescue anyone," the traumatised teenager said.
Muronzi who still cannot comprehend how she managed to escape the ordeal said she tried to save her sister Sharon but failed. She however managed to save a two year old child who held onto her hair extensions for dear life. Muronzi said she somehow managed to swim and was eventually rescued by a boat.