THE Judicial Service Commission (JSC) is investigating some magistrates at the Harare Magistrates Court after a warrant of arrest was issued and signed by an unknown magistrate leading to the incarceration of Marondera businessman Francesco Marconati.
In a letter dated June 25 signed by Bianca Makwande, JSC secretary Walter Chikwanha, confirmed that the commission was investigating an abuse of the procedure for inquiring into alleged breach of community service order of Marconati and his son Allessandro.
“Reference is made to the above subject matter. We acknowledge receipt of your letter dated 20 June 2024. Kindly be advised that we are looking into the issues raised and we will revert to you soon,” the letter read.
The investigations by the commission come after Marconati’s lawyers filed a complaint against the procedures and the warrant that led to him being incarcerated for four days at Harare Remand Prison.
In the letter the lawyers wrote that Marconati was arrested soon after he had attended a trial on June 10 at the Harare Magistrates Court by officers stationed at Braeside Police Station.
The lawyers said at the time of arrest the police officers failed to produce a copy of the warrant of arrest but insisted that copies would be provided at the police station and Marconati complied and followed the police officers in the company of his lawyers.
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At the police station, the police officers produced a copy of an ordinary warrant of arrest issued on June 6 and it indicated that it was signed by one Magistrate Moyo.
“It remains questionable as to which Magistrate Moyo signed the warrant of arrest because the known magistrate Ruth Moyo, unless there is another, was not at the magistrates court on June 6 and the signature appended to the warrant of arrest does not belong to her,” wrote Marconati lawyers.
“No investigations whatsoever were carried out. The statement or comments of the supervisor were not in the record. As such, this raises questions as to what really compelled the magistrate who signed the warrant of arrest when clearly there was no sufficient evidence.
“The authority or office central to the inquiry of breach of community service is the supervisor, yet there was no comment from the supervisor.
“Francesco Marconati was persecuted only to satisfy the demands and pressures of Li Song and there is reason to believe that the postponements of the matter were calculated to achieve that.
“Francesco Marconati was persecuted and spent four nights in custody over a trial-and-error proceeding. As such, we have been instructed, to bring this to the attention of your esteemed authority as the commission responsible and tasked in terms of section 255(1)(a) and (d) of the Constitution of the Republic of Zimbabwe, 2013 to handle complaints of such nature particularly where allegations of abuse of authority are raised and where signs of undue influence are prevalent,” read the letter.
The lawyers said the warrant of arrest indicated that Marconati had breached the community service order which was imposed through a ruling of the magistrates court delivered on March 27.
The explanation of the ZRP -Braeside members was that Francesco had not at all performed community service and as such they had been ordered and empowered to arrest by the warrant of arrest and they detained him.
The lawyers wrote that all magistrates who were approached refused to entertain the matter for one reason or the other.
“Moreover, prior to appearing before magistrate Kandiyero, efforts were made by his lawyers to secure papers of evidence forming the basis of the State’s accusations that a community service order was breached,” they wrote.
They submitted that the document showing that Marconati performing community service was removed to support the notion that he had not performed the unpaid job.
“The arrest was argued to be unlawful. The procedure adopted was wrong and outside the four corners of section 350D of the Criminal Procedure and Evidence Act and the Community Service (General) Regulations.
“There was no statement on oath tendered in the court stating the allegations or basis of the allegations. The information placed before the court was insufficient and incomplete.
“There was no evidence of an inquiry or investigation with the supervisor at Inyathi Police Station charged with supervising Francesco Marconati throughout the period of community service. There was no statement obtained from the supervisor. No evidence of a complaint from the supervisor,” the lawyers wrote.
“There was no warrant of detention and certainly that could not be assumed to have been ordered through the warrant of arrest considering that the law separates it.
“Francesco Marconati had performed 91 hours of community service but had not finished the remainder because half the time he was appearing in court and also he had travelled for two weeks for a medical check-up in Italy. The evidence was there and the supervisor was aware and had permitted it,” wrote the lawyers.
The lawyers said Francesco was arrested to settle personal scores of the complainant, adding that the State was aiding and making it possible.