By Auxilia Katongomara
The Constitutional Court has dismissed an application by University of Zimbabwe Vice Chancellor, Levi Nyagura citing infringement of his constitutional rights to a fair trial, ruling that the matter should proceed to trial.
Nyagura is accused of illegally awarding former First Lady Grace Mugabe a PhD.
In dismissing Nyagura’s application Chief Justice Luke Malaba ruled the applicant had invoked a wrong remedy to challenge the decision by a magistrates’ court at the apex court.
In the application, Harare magistrate Mr Lazini Ncube was cited as the first respondent, Prosecutor General Mr Kumbirai Hodzi as the second respondent and prosecutors Tapiwa Fresh Godzi and Michael Chakandida as the third and fourth respondents respectively.
Nyagura argued that Messrs Godzi and Chakandida from the President’s Special Anti-Corruption Unit, who are representing the State, had no authority to prosecute.
He said the Prosecutor-General, by granting the pair authority to prosecute when they are not employees of the National Prosecuting Authority (NPA), was in breach of his right to the equal protection and benefit of the law, as well as right to a fair trial.
However, Chief Justice Malaba sitting with Justices Tendai Uchena and Lavender Makoni on Wednesday ruled that there was discordance between what happened and the relief sought as it based on the allegations that there was a refusal by the court a quo to refer the constitutional questions to the Court.
“There was a determination of the constitutional questions on the merits. The decision terminated the controversy between the parties on the question whether the authority to prosecute was lawfully given to the third and fourth respondents by giving victory to the Prosecutor-General. The applicant was bound by the decision of the court a quo and had to stand trial,” ruled CJ Malaba.
Mr Ncube directed that the matter proceeds to trial which then prompted Nyagura to make a Constitutional Court application.
CJ Malaba ruled that Nyagura invoked a wrong remedy to challenge the decision by Mr Ncube at the Constitutional Court.
“It was held that once a subordinate court rendered a decision of the constitutional question, the dispute arising there from could only be resolved by way of appeal.
“The applicant invoked a wrong remedy in a bid to redress the decision of the court a quo on the constitutional questions he raised in the criminal proceedings in that court,” ruled CJ Malaba.
“If the applicant was of the view that the decision by the court a quo was wrong, he had the remedy to appeal for the redress of the decision. A wrong judicial decision does not however give rise to a ground for an alleged violation of the right to equal protection of the law. No law provides protection to a litigant against the possibility of a judicial officer making a wrong decision.
In the result, it is hereby orders as follows; the application be and is hereby dismissed with no other costs”.
Nyagura through his lawyer – Advocate Tererai Mafukidze said the arguments by the respondents that the matter ought to be dealt with in the court a quo and not by the Court as dictated by the principle of subsidiary was flawed.
Mr Justin Uladi for Messrs Ncube, Godzi and Chakandinakira submitted that the application was not properly before the Court.
He argued that the law authorized the Prosecutor General to appoint a legal practitioner to conduct a prosecution on his behalf. The authority was not limited to legal practitioners employed in specific institutions.
In a ruling last year, Mr Ncube said the appointment of Messrs Godzi and Chakandida was within the confines of the law.
“There are no merits to refer the matter to ConCourt, there are no grounds,” he said. “The application is vexatious.” The Chronicle