Businessmen Mike Chimombe and Moses Mpofu are set to appear in the High Court today, contesting the validity of having assessors in their criminal trial who are over the age of 70. The pair, facing allegations of embezzling US$7 million, previously halted their trial to raise constitutional concerns.
A central issue in their argument is whether it is permissible for assessors above this age to serve alongside a judge during the trial. They assert that the High Court Act does not impose an age limit for assessors, contradicting the Constitution, which specifies a maximum age of 70—recently raised to 75 for judges. They claim this age limit should apply to all judicial officers in the High Court.
In High Court criminal cases, a judge is accompanied by two assessors, who, while sharing equal voting power on factual matters, defer to the judge on legal questions. The prosecution contends that there is no statutory age limit for assessors, suggesting that Chimombe and Mpofu’s request for a Constitutional Court review lacks merit and is fundamentally flawed.
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While the Customary Law and Local Courts Act of 1990 allows for assessor appointments in community courts without age restrictions, the High Court Act similarly does not specify any age limits for assessors in criminal trials. The prosecution’s position indicates that existing legislation supports their claim of no age restrictions.
Nonetheless, the Constitutional Court may still entertain the application if it presents significant constitutional questions. The prosecution maintains that Chimombe and Mpofu’s request for referral is without basis and should be dismissed.
Representing Mpofu is Mr. Tapson Dzvetero, assisted by Lorraine Tshaka, while Professor Lovemore Madhuku and Advocate Garikai Sithole, instructed by Mr. Ashley Mugiya, are acting for Chimombe. The State is represented by Mr. Whisper Mabhaudhi and Mr. Lovech Masuku from the Prosecutor General’s Office.
