Asiagate scandal spills into the High Court

By Petros Kausiyo

HENRIETTA RUSHWAYA has taken her battle to be cleared of match-fixing charges to the High Court with the for­mer Zifa chief executive this time chal­lenging the impartiality of the Zifa Independent Ethics Committee that has been tasked to bring the Asiagate probe to finality.

Rushwaya leads a cast of four appli­cants who are questioning the impar­tiality of the committee that is led by retired Supreme Court judge Justice Ahmed Ebrahim. The former Zifa chief executive is the first applicant in the matter while the other litigants are for­mer Warriors coach Sunday Chidzambwa, ex-national team captain Benjani Mwaruwari and Godfrey Japa­japa the former Premier Soccer League fixtures secretary.

However, it has emerged that Benjani wants to appear before the Ebrahim committee on August 20.In the papers filed at the High Court in Harare recently, Rushwaya and her co-appli­cants believe that some of the members who make up the Ethics committee are too compromised to give a fair and pro­fessional hearing to those who have been fingered in the Asiagate scandal.

Zifa, through an earlier report com­piled by the committee led by the asso­ciation’s vice-president Ndumiso Gumede had already fingered Rush­waya, player agent Kudzi Shaba and for­mer Zifa programmes officer Jonathan Musavengana as the alleged master­minds in the Asiagate scam.

Now Rushwaya believes that the Ebrahim committee is likely to follow the same route without according her a fair hearing in their probe.

Ebrahim is cited as the first respon­dent with Bulawayo lawyer and Sport and Recreation Commission chairman Joseph James as the second respondent while Zifa president Cuthbert Dube is the third. Rushwaya had earlier sought a review of the set up of the Independent Ethics committee but Ebrahim threw out her appeal on July 23.

However Rushwaya, adamant that some of the members of that committee should have recused themselves, wants the High Court to order that:

The ruling by the first respondent (Ebrahim) on 23 July 2012 dismissing the application to set aside the Zifa Independent disciplinary Ad-hoc com­mittee be and is hereby set side

That Zifa is ordered to pay the costs of this application on an attorney and client scale.

In her appeal for review Rushwaya outlined a number of factors in he founding affidavit, which she believes makes her case strong.

“I am the first applicant and have been authorised to depose to this affi­davit by the 2nd, 3rd and 4th applicants. The facts are deposed within my per­sonal knowledge and belief true and correct. I have also gathered some of the information which I have deposed to from the respondents and other sources such as the Fifa investigations commit­tee headed by Chris Eaton.

“The first respondent is retired Jus­tice Ebrahim who has been cited in his official capacity as the chairman of the disciplinary ad-hoc committee. The second respondent is Joseph James who is cited here-in in his official capacity as the chairman of the Sport and Recre­ation Commission. The third respon­dent is Cuthbert Dube who is cited herein in his official capacity as presi­dent of the Zimbabwe Football Associa­tion.

“This is an application for review in terms of Section 27 of the High Court Act Chapter 7:06. I, together with my other applicants instructed Mr. Samukange to make an application on the 21st day of July 2012 in which we asked the committee to refer the matter to second respondent on the grounds that the first respondent and his mem­bers were biased as they had all been appointed by the third respondent,’’ Rushwaya said.

Rushwaya said she had also expressed her reservations with the Ebrahim com­mittee when she met with former Fifa head of security Eaton and his investi­gating team.

“The third respondent had made it clear that he especially believed that I am guilty of match-fixing. It was there­fore clear that the committee was set up as simply to rubber stamp his belief and legitimise his conduct.

“I had expressed both during the Fifa hearing and in many interviews I held with the public media that I am inno­cent. This was the view held by not only myself but other applicants. There is really no basis for this belief.

“I must also point out that my suspi­cion that this committee is biased was confirmed when the ruling was made on Monday 23 July 2012 at 1600hrs as the committee refused to refer the mat­ter to the SRC despite the fact that there were good and genuine grounds for such referral,’’ said Rushwaya.

In outlining her grounds for review, Rushwaya also dispute the grounds upon which her earlier application was dismissed by Ebrahim.

“The applicant made an application before the first respondent for the set­ting aside of the Zifa Independent Dis­ciplinary committee and the recusal of its current members on the basis of var­ious reasons which we stated in the said application which we also hereto attached as Annexure A.

“The first respondent proceeded to dismiss the application the basis that the finalisation of their so-called investiga­tions had been long outstanding and the committee needed to finalise its investigations/enquiries/hearing as soon as reasonably possible.

“It was further stated in dismissing the application that the applicants could always make an application for review after the finalisation of their mandate that such an application does not stop the hearing proceedings and all that Zifa needed was the assistance of the applicants.

“It was also stated that the committee was also surprised by the fact that such an application had been made at what was considered to be the eleventh hour.

“It is clear from his reasoning for the ruling that first respondent did not properly apply his mind to the nature and substance of the application that was placed before him neither did he seriously consider the nature of the issues raised in the application,’’ Rush­waya said.

The appointment of the Ethics com­mittee, Rushwaya also argued, was laced with a number of irregularities which she felt warranted the referral of the matter to the SRC.

Ironically, Zifa’s probe into the Asia­gate scam was at the instigation of the Sports Commission who dismissed an earlier report compiled by the Welling­ton Nyatanga board following the War­riors return from their trip to Thailand on December 31, 2009 and ordered that another committee be set up.

Rushwaya said the irregularities she cited in the composition of the Ethics committee were completely ignored “including the fundamental point that Zifa cannot be the complainant, the one that sets up the so-called Independent com­mittee to investigate its com­plainant (reports to and is wholly funded by Zifa) and at the end of it all make recommendations to Zifa as to the form and nature of punishments to be meted out’’. The fact that Zifa has no power to appoint an ad-hoc committee in a mat­ter in which it is itself the complainant as opposed to the scenario whereby it appoints an independent committee to investigate and resolve between two or more of its affiliates was also equally ignored.

“This resulted in a decision contrary to law, logic and what the proper admin­istration of justice seeks to pro­mote and what it stands for. Surely Zifa cannot be the complainant, the police to investigate its complaint, the prosecu­tors as well the judge to preside over its own case if any notion of justice and what ought to be viewed as a fair hear­ing is to be observed. This is surely a gross irregularity,’’. The applicants also strongly ques­tioned the composition of the commit­tee particularly the inclusion of such members like Gibson Mashingaidze, Tererai Gunje, Kennedy Sigoba and Emmanuel Chimwanda

“The decision of the first respondent should be reviewed lest the applicant run the risk of being made/forced to appear before a biased committee whose find­ings have since been con­cluded for it at the behest of Zifa and will merely rub­ber-stamp Zifa’s com­plaints especially against Ms HB Rush­waya and will subse­quently be wrongly convicted. The first respondent failed to appre­ciate both the legal and practical effect of all these irregularities. Applicant prays that the proceedings ad decision of the Zifa Independent Disciplinary committee sitting as a court a quo be reviewed immediately in order to pre­vent irreparable prejudice from being occasioned on the applicant’’. The Herald