High Court frees ‘Madzibaba Ishmael’ on bail pending appeal in rape case

Controversial religious leader Ishmael Chokurongerwa, popularly known as Madzibaba Ishmael, has been freed pending appeal after the High Court ruled that his case raised serious legal questions that could overturn his conviction.

In a ruling delivered at the High Court of Zimbabwe in Harare on March 4, Justice Neville Wamambo granted Chokurongerwa bail pending appeal after finding that several issues in the case, including the handling of DNA evidence, the complainant’s age and the absence of a direct rape complaint, gave him “prospects of success on appeal”.

Chokurongerwa had been convicted of one count of rape under the Criminal Law (Codification and Reform) Act after being acquitted on two other counts. The trial court sentenced him to 20 years in prison.

However, Wamambo ruled that the appeal raised significant questions that warranted his release on bail while the higher court considers the matter.

“I am of the considered view that a number of issues arising, including the absence of a rape complaint by P.T, the DNA sample handling, and the issue of the age of T.P gives the applicant prospects of success on appeal,” the judge said.

Chokurongerwa shot to national prominence as the leader of a religious sect after allegations of abuses within the group emerged, drawing widespread public attention.

The High Court noted that the case was unusual in several respects, particularly because the alleged victim did not make a complaint of rape.

“This matter is indeed a novel one,” the judgment reads. “It is not only based on DNA samples and an age estimate report but it is a matter where there is no complaint of rape from the complainant or her guardian.”

According to the court record, the complainant, identified only as P.T testified in court and exonerated Chokurongerwa during the trial.

“In fact, the complainant herself (P.T) testified and in her evidence she exonerated the applicant,” the judgment states.

The complainant’s mother also produced a birth certificate showing that P.T was above the age of consent at the time of the alleged offence, although the trial magistrate questioned its authenticity, suggesting it may have been obtained after the accused’s arrest.

The High Court further raised concerns about the handling of DNA evidence, noting that although there had been a court order governing how samples were to be obtained and handled, the procedures were not followed precisely.

“There is a High Court order on how the DNA samples were to be obtained and handled. Same was not followed to the letter… The chain of custody appears on the face of it to be broken,” Wamambo said.

The trial court had also relied on an age estimation report, which concluded that the complainant was about 15 years old on April 2, 2024, based on a dental examination.

But the High Court pointed out inconsistencies between the age estimation and the complainant’s own testimony about her date of birth, which she said was December 16, 2004.

Wamambo also criticised part of the reasoning used by the trial court in determining that rape had occurred.

Quoting the lower court’s findings, the judge said the magistrate had concluded the complainant never said she consented to sexual intercourse. The High Court found this problematic.

“That amounts to reverse onus if not a clear misdirection,” the judge said. “It is the complainant who should testify to no consent not that she never testified to the effect that she consented.”

The High Court also noted that the alleged circumstances surrounding the offence were largely inferred rather than directly testified to.

“As alluded to before, there is no evidence placed on record of non-consensual sex between T.P and the applicant. The circumstances as found by the Trial Court were not directly testified to and are mostly by implication,” the court said.

Wamambo further remarked that the 20-year sentence appeared “rather lengthy,” especially as no portion of it had been suspended.

In granting bail, the court said the strong prospects of success on appeal significantly reduced the likelihood that Chokurongerwa would abscond.

“Although it can never be guaranteed that an applicant will not abscond, in the peculiar circumstances of this novel case with apparently strong prospects of success on appeal the likelihood of abscondment is reduced substantially,” the judge ruled.

The court ordered Chokurongerwa’s release on US$1,000 bail.

As part of the conditions, he must reside at Number 16 Jachacha Crescent in Msasa Park, Harare, report to CID Law and Order in Harare three times a week, and appear in the High Court whenever required for the hearing and determination of his appeal.

His appeal against the conviction remains pending before the High Court.