Magaya’s security obstruction of justice and assaults on court sheriff officials: Lessons learnt

By Arnold Tsunga

The cases of the assault of the High Court Sheriff staff by Prophet Magaya’s staff were taken to court at Mbare Magistrate Court today. It turned out that there were a number of cases involving multiple victims of assault and multiple suspects all linked to the PHD Ministries and Prophet Magaya.

The docket involving Tonderayi was taken to court in the morning. It was sent back to the Waterfalls police station for proper investigations after the Area Prosecutor concluded that the docket was shoddy and had too many loopholes that needed to be attended to. The state was advised to proceed by way of summons and to release the suspects. Thanks to the role of the police in not carrying out proper investigations the assailants are off the hook for the time being in this case.

A second case on a Request for Remand basis involving the same 3 suspects and others at large was also taken to court in the afternoon. This second case related to the assault of numerous staff members of the High Court Sheriff and obstructing them from carrying out their lawful duties as officers of the court.

The charges brought before the court included assault, obstruction of justice and violation of a section of the High Court Act. They were all represented by Attornies Chikowore and Chatambudza. Again in this case the police investigation was shoddy and the accused were released by the court, the court judging that they had been over detained in breach of the 48 hour rule. If the state wishes to proceed then it has to proceed by way of summons.

This case demonstrated how important it is to fix the justice delivery system by increasing the capacities, efficiency and integrity of all the players in the justice chain. The strength of the justice system is measured by the strength of its weakest link in the justice delivery chain. In this case the work of the different role players is summarized below.

The Courts made a decision that seemed to be clearly based on the facts and the law that was presented before them. No issues arise.

The prosecution office tried their best to best present the case as presented to them by the police. However they did not have sufficient time to give advice and directions to the police in a way that allowed for an effective relationship that covers obvious and unnecessary weaknesses in the presentation of the case. Some work and capacity seems necessary in this area.

The police were dreadfully short in this case. There was a mixture of inefficiency, incompetence, incapacity, corruption and unnecessary lack of cooperation. Some of the serious concerns include that,

1. This was a serious rule of law case involving serious obstruction of justice and assault of court officials by people associated with a powerful person Prophet Magaya and yet it was allocated to a junior person constable Ndaradza who was clearly trying his best but was out of depth and the case was above him. I brought this to the attention of the IC Waterfalls Police Station who was clearly aware of this as well as the importance of the case in defending the integrity of the justice system. He seemed unwilling to commit a senior person to be the investigating officer.
2. The police initially prepared an assault docket which was weak and incoherent and sent it to the Area Public prosecutor who rightly returned it to the police for tightening up. This managed to prevent the case involving Tonderayi from being taken to court. It allowed for the suspects to be released on summons which seemed to be the police objective.
3. The police then waited until the afternoon to take the accused to court on the more serious charges of obstructing justice and assault. They also prepared the request for remand forms that showed that the accused had been in custody for 2-3 hours outside the 48 hour limit. This then allowed the accused to be released by the court without charge on account of the fact that their continued arrest after 48 hours was a breach of the constitution. While the judgment of the court was refreshing in terms of constitutional doctrine, it showed how the police came in aid of the suspects either deliberately or through incompetence or both.
4. The most disconcerting issues about the police especially senior police at Waterfalls police station which warrant that a proper investigation be set up against them for failing to strongly defend the integrity of the justice system include that they did not allocate the case to their senior and most competent investigators; they did not manage the case to comply with constitutional time limits for taking matters to court in order to frustrate the case; the most damaging being that they released one or some suspects at night while indicating that they are under detention.

The case of the release of accused Tongai Bishu a senior leader at PHD Ministries from custody irregularly at night while indicating that he is in custody shows the rot at Waterfalls police station and the strong influence of Prophet Magaya.

It’s damaging to the criminal justice system. I could not help but feel so frustrated sitting in court and hearing the magistrate rule that the accused persons have been over detained in violation of the constitution and therefore need to be released without charge when I knew full well that they, in particular Bishu was not in custody but was coming from home to the police station in the morning.

That Bishu was not in custody and therefore could not have been over detained was confirmed by a senior policeman at Waterfalls Police Station who only said please establish this from the PGHQ Internal but heads may roll.

This case has reaffirmed how vitally important it is for everyone to work to restore the credibility of the criminal justice system.

Prophet Magaya and other powerful leaders need to understand the immense responsibility that they have to make our legal system work for everyone. The law should not be like a spider’s web which only catches the weak. Impunity is dangerous. It cannot build our country. Attacking court officials while executing their duties in order to frustrate justice should be a no no, no matter how powerful one is.