By Daniel Nemukuyu
Higher and Tertiary Education, Science and Technology Development Minister Professor Jonathan Moyo rushed to the Constitutional Court challenging the lawfulness of his arrest when a magistrate could have dealt with the matter without difficulties, Chief Justice Luke Malaba has ruled.
Justice Malaba – sitting with eight other judges – passed the comments in the case in which Minister Moyo is challenging arrest on allegations of swindling the Zimbabwe Manpower Development Fund (Zimdef) of close to $500 000.
The full bench of the Constitutional Court yesterday reserved judgment in the matter after hearing arguments from the parties involved.
Minister Moyo, who was represented by Advocate Lewis Uriri and Mr Terrence Hussein, is seeking an order pronouncing that the Zimbabwe Anti-Corruption Commission has no arresting powers.
He is also seeking to have his arrest declared unlawful.
The minister also seeks nullification of the warrants that allowed the investigators to search Zimdef premises.
Chief Justice Malaba said if Minister Moyo was indeed arrested, as per his lawyers’ confirmation, he should have appeared before a magistrate and challenged the validity of arrest.
“If you are saying there was an arrest, why didn’t you go to the magistrate’s court to argue that the arrest was unlawful.
‘You have an arrest. You say the arrest was unlawful. A magistrate has jurisdiction to decide on the lawfulness of arrests.
“The law says a person who is arrested should go to court within 48 hours and challenge his or her arrest,” said Chief Justice Malaba.
Adv Uriri confirmed that a magistrate has jurisdiction to hear matters of that nature, but he argued that the Constitution provided for both routes.
He argued that the circumstances of Minister Moyo’s case warranted direct access to the Constitutional Court.
“The Constitution also provides for expedient ways of resolving matters of this nature and that is why we found ourselves here.
“There are instances where the Constitutional Court appears to be the best court to deal with some constitutional issues,” said Adv Uriri.
Ms Venrandah Munyoro, a chief law officer in the Attorney-General’s Office, argued that Minister Moyo should have appeared before the magistrate’s court on November 3 instead of jumping the gun by rushing to the highest court in the land.
“The applicant is not properly before this court. He must utilise the remedies available to him first,” she said.
Adv Thembinkosi Magwaliba, on behalf of the Prosecutor-General Adv Ray Goba, defended his actions in the matter saying his correspondences to the law enforcement agents were lawful.
He urged the court to dismiss Minister Moyo’s application.
Adv Magwaliba said a magistrates’ court was the best platform for the minister’s challenge.
He urged the court to throw away the minister’s request to nullify the warrants of search and seizure issued in respect of Zimdef and other premises.
“The warrants in question have not been issued against the applicant.
“They do not bear his name and the property in question is not his personal property. What does he fear, which makes him want to litigate for Zimdef?” said Adv Magwaliba.
The court dismissed a separate application by the State in which it sought to file a supplementary answering affidavit by an investigating officer, a Sergeant Chacha to bolster its case against Minister Moyo.
Chief Justice Malaba threw out the application after realising that some of the information contained in the said affidavit was false.
“You have an application founded on a false statement of affidavit that contains untruths . . . By consent the application is dismissed with costs,” ruled Chief Justice Malaba.
Minister Moyo, his deputy Dr Godfrey Gandawa and Zimdef finance director Nicholas Mapute, stand accused of abusing nearly $500 000 belonging to Zimdef.
They were arrested by the Zimbabwe Anti-Corruption Commission.
Dr Gandawa and Mapute have since been placed on remand at the Harare Magistrates’ Courts.
Before the trio’s court appearance date, the minister instructed his lawyer Mr Hussein to file an urgent interdict at the Constitutional Court.
The now late Retired Chief Justice Godfrey Chidyausiku last year temporarily stayed Minister Moyo’s prosecution pending determination of whether or not his arrest was constitutional. The Herald
