By Nyore Madzianike\Geraldine Zaranyika
Former Vice President Phelekezela Mphoko yesterday notified the court that he wants to approach the Constitutional Court to determine whether he is still entitled to Presidential Immunity as set out in Section 98 of the Constitution.
The former VP notified the court that he also intends to approach the upper court to seek clarification on whether he was also protected under the defence of Good Faith as pronounced in Section 98 of the Constitution.
He made the notification when he appeared at the Harare magistrates’ court where is facing criminal abuse of office charges.
Mphoko allegedly instructed junior officers at Avondale Police Station in Harare to release former Zimbabwe National Road Administration (Zinara) acting chief executive Moses Juma and former board member Davison Norupiri, who was Zinara’s finance committee chairperson, from the cells.
Juma had been jailed on abuse of office charges.
“Take notice that the accused person contends that a Constitutional matter has arisen in these proceedings and by operation of Section 175 (4) of the Constitution requests that the matter be referred to the Constitutional Court for determination,” said Mphoko in his notification letter tendered to the court.
Mphoko, through his legal team led by Advocate Tawanda Zhuwarara said five Constitutional questions, which need referral to the ConCourt, have arisen in the matter.
He wants the ConCourt to also decide on:
“Whether Presidential Immunity as set out in Section 98 of the Constitution extends to acts and or omissions by the Vice President (and former Vice President) who alleges and intends to prove that such acts or omissions actuated during the discharge of his or her duties accordance with Section 99 of the said Constitution.
“Whether the defence of Good Faith as enunciated in section 98 (4) of the Constitution is available to a Vice President (and former Vice President) who alleges and intends to prove that such acts and or omissions were actuated during the discharge of their duties in accordance of section 99 of the said Constitution.
“Whether by operations of Section 99 and 107 of the Constitution, the defence of “obedience to orders” is available to a Vice President (and former Vice President) who alleges and intends to prove that such acts and or omission were actuated during the discharge of their duties in accordance with Section 99 of the said Constitution.
“Whether by operations of Section 110 (1) as read with section 207(2) of the Constitution the President and or Vice President has the immutable authority to direct, intervene, instruct and command the police service and its constituent members.
“Corollary to the aforementioned questions is the question whether the defence of claim of rights is available to a President of Vice President who intervenes in the activities of the police service and its constituent members.”
Mphoko also made the notification after Harare regional magistrate Mr Hoseah Mujaya turned down his application to have his trial transferred to a Bulawayo court.
The former Vice President claimed that he could no longer afford to travel from Bulawayo to Harare for his court hearings.
Mphoko also argued that the witnesses can afford to travel to Bulawayo through State assistance.
He also claimed the need to attend to his social, economic and health needs would result in him making numerous applications for postponements, disturbing the court systems in the process.
“There is also a corresponding Prosecutor General in Bulawayo and there is no justification for the matter not to be dealt with in Bulawayo,” said Mphoko’s lawyer Adv Zhuwarara in his application.
The State led by Mr Lovett Masuku said Mphoko should not seek to extend his social and economic problems to the witnesses, as they are employed officers with other duties to execute.
“A matter can be heard anywhere if the Prosecutor General consents to the change of venue, but in this particular matter that has not been done,” he said.
In his ruling magistrate Mr Mujaya concurred with the State saying the PG has not consented to the change of venue and dismissed Mphoko’s application.
He is expected to return to court on December 6 for trial continuation. The Chronicle