A suspected thief who allegedly evaded arrest for more than three months was released by police after a criminal case against him collapsed at the Chitungwiza Magistrates’ Courts because a key witness’ statement had not been recorded.

The development has raised questions about investigative diligence at ZRP Chitungwiza, after the court reportedly returned docket CR353/08/26 to the police when the State was unable to proceed without the witness.

The release also came as the police faced the constitutional 48-hour limit within which an arrested person must be brought before a court or released, unless a competent court has extended the detention.

The accused, Simbarashe Chiunye, is facing allegations of theft of trust property involving US$350. The money was allegedly received for the purchase of materials required to repair and install wooden cupboards and fitted units.

According to a formal complaint lodged with the Officer Commanding Chitungwiza District, Chief Superintendent Severino Muguti,  the money originated from Stanford Mushayi and was physically delivered to Chiunye by David Mundwa Kudakwashe, who is described in the documents as a material witness and complainant in a separate complaint concerning the same transaction.

Chiunye was allegedly expected to return the same day to carry out the work for which he had been paid. However, he allegedly disappeared without performing the task, refunding the money or providing an explanation.

The suspect reportedly remained difficult to locate until August 17, when Mushayi says he managed to find and apprehend him before handing him over to the police.

The apparent breakthrough, however, quickly turned into a setback.

Mushayi’s complaint states that he reported the matter at ZRP Chitungwiza on August 18 and met the investigating officer, Constable Melody Marimo. He allegedly informed her that Kudakwashe was an important witness because he had physically handed the money to Chiunye.

Mushayi further claims that he told the officer Kudakwashe was in Bulawayo but was available and could be contacted to attend court.

However, when the parties appeared at the Chitungwiza Magistrates’ Courts the following morning, Marimo was allegedly not present. A Constable Mbeleji instead escorted them to court.

The matter reportedly failed to proceed after the Regional Prosecutor who vetted the docket ruled that Kudakwashe’s attendance was necessary. The docket was consequently returned to the police station.

Upon their return, Mushayi alleges that Marimo removed Chiunye’s handcuffs and told him he was free to leave.

Mushayi says he questioned the officer about the release and the future of the case but was not given a satisfactory explanation. According to his complaint, he was instead told to lodge a formal complaint if he believed he had been short-changed.

He subsequently did so.

A second complaint, dated August 19 and signed by David Kudakwashe Mundwa, the key witness, has now added further concerns about the handling of the investigation.

In his complaint, Kudakwashe alleges that police released Chiunye without first recording his statement, despite his alleged role in receiving and delivering the money.

“I was neither contacted by the police to provide my statement nor advised to attend court in connection with the matter,” he states.

He further says he was willing and available to assist investigators and that his contact details were known to the investigating officer.

“I was at all times willing and available to assist the police with their investigations,” he writes. “I therefore do not understand why I was not contacted before the matter was taken to court.”

Kudakwashe claims that Constable Marimo eventually contacted him on August 19 and asked whether he knew Mushayi. He says the officer told him that, had she taken his existence into consideration, she would have facilitated Chiunye’s placement in remand prison.

The alleged admission, however, came after the matter had already been presented before the court.

Mundwa has asked the Officer Commanding Chitungwiza District to investigate the conduct of the investigating officer, the decision to proceed without his statement and the circumstances surrounding Chiunye’s release.

Zimbabwean law requires police to bring an arrested person before a court as soon as possible and, in any event, within 48 hours of arrest or detention, unless the detention has been lawfully extended.

Section 32(3) of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that an arrested person who is not released must be brought before a court within that period.

Section 50(2) of the Constitution contains a similar safeguard, while section 50(3) states that a person who is not brought before a court within 48 hours “must be released immediately” unless a competent court has earlier extended the detention.

The legal protection is intended to prevent unlawful or indefinite detention. It does not, however, excuse poor case preparation.

The central question in this matter is why police allegedly proceeded to court before securing the attendance of a witness they had reportedly been told was essential.

Investigators had the accused in custody, a complaint involving a specific amount of money and at least one identified witness who allegedly played a direct role in the transaction. Yet the matter was presented without that witness and, according to Mundwa, without his statement having been recorded.