Magaya wins Con-Court referral

By Tarisai Machakaire

Zimbabwe’s Constitutional Court (Con-Court) took up a case testing the prosecutor-general’s decision to forge ahead with popular cleric Walter Magaya’s rape trial even after the complainant has asserted that she did not wish to pursue the sexual assault charge.

Magaya was granted leave to appeal at the Con-Court by a Harare magistrate yesterday before being removed from remand.

The referral will scupper the ongoing rape trial at the magistrates’ court.

The Con-Court will decide whether Magaya’s right to liberty had been infringed by the State’s intention to railroad him into a trial even after the State’s chief complainant had turned hostile.

Magaya’s lawyers, advocate Thabani Mpofu, who was being instructed by Rubaya and Chatambudza law firm, argued the State’s move runs afoul of the Constitution.

The Con-Court is set to hear oral arguments and issue a ruling.

Harare magistrate Vongai Guwuriro concurred with Magaya’s advocate that it was necessary to refer the case to the apex court.

“It is now not in dispute that she has made an about turn and that the State in its arguments failed to disprove that assertion, although the complainant was seated here in court,” ruled Guwuriro.

“In light of the complainant now changing goal posts, the aspect of reasonable suspicion against the accused person falls away and to pursue with this matter would infringe on the accused person’s rights.”

On December 1, the alleged rape victim — a Masters student at the Midlands State University — served her withdrawal letter to the deputy prosecutor-general, national director of public prosecutions, chief public prosecutor, commissioner general of police, officer commanding law and order, clerk of court, Harare showing the complainant has had a change of heart.

Prosecutor Sabastian Mutizirwa insisted on furnishing Magaya with a trial date yesterday after arguing that the complainant did not have the power to determine the outcome of the State’s case.

Earlier, chief law officer Michael Mugabe wanted to indict Magaya for trial at the High Court.

Prosecutor Mutizirwa insisted the complainant’s affidavits were “not genuine” and should have been tendered in court through him.

Mpofu retorted that it was illogical for the State to force Magaya to go and stand trial at the High Court based on a false complainant.

The advocate then called Magaya to the witness stand to confirm an affidavit that he deposed to the prosecutor-general’s office under oath.

“The complainant has deposed four affidavits that the complaint is false in substance and there are therefore no disputed facts. On the other hand, we have a State that wants to interfere with the administration of justice,” Mpofu said.

“It is unlawful and contrary to the Constitution for the prosecutor-general to seek to commit a person to trial when the complainant has confessed to have lied. That intention is tainted and puts the judicial process into moral defiance.

“ . . . for the State to simply say we will try you is an abdication of justice”.

Mpofu queried why the acting prosecutor-general did not want to acknowledge the complainant’s confession at the expense of Magaya’s liberty.

“Why does the prosecutor-general want to go to the High Court? One can see that there is something more going on that is illegal. The word that must go out there is that when the State becomes rogue, the Constitution must apply,” he said.

In his application, Magaya made reference to contents of the complainant’s first withdrawal affidavit which was found slipped under the previous presiding magistrate Vakayi Chikwekwe’s door.

“Before the 30th of November 2016, the complainant wrote two other affidavits notwithstanding the clarity with which the complainant sets out her position, the State still decided that it would not give any heed to her,” Magaya argued.

Magaya argued that the State does not have the right to proceed when it has lost both the complaint and its sole witness.

Magaya then cited sections 56(1), 56(1), 69(1), 49(1) (b) and 70(1) (b) which guarantee his rights to a fair judicial process. Daily News