Online Reporter
Zvikomborero Parafini
PROPHETIC Healing and Deliverance Ministries leader, Walter Magaya, who is facing rape allegations says it is within his rights to challenge his prosecution as it has emerged that the State’s intentions are “tainted” and in pursuit of “nothing” legal.
Magaya, represented by Mr Admire Rubaya and Mr Everson Chatambudza, has mounted an application to have the matter referred to the Constitutional Court alleging that the prosecution is acting outside the law and wants to proceed to trial based on “fabricated” evidence.
The legal team argues that the inquiry has unearthed a plot by prosecution to secure a conviction by any means necessary and not pursue justice, alleging the investigating officer and prosecutor, Ms Tendai Shonhayi, amended the original statement of one of the witnesses based in Ireland which did not “divulge” how the rape was committed.
They also raise concern over the insistence by the State to proceed to trial despite withdrawal by one of the complainants, saying the State is seeking to involve the criminal justice system in moral “defilement”, adding that this would compromise the integrity of the criminal justice delivery system.
The State has argued that there is nothing to warrant the matter to be referred to the Constitutional Court describing the application as “frivolous and vexatious” and aimed at delaying trial.
On Friday, Chief Director, Mr Clemence Chimbari, being assisted by Ms Shonhayi argued that the Prosecutor General operates independently and has the right to decide who to and not to prosecute.
They argued that issues raised by Magaya will be cured during trial and provide “fertile” ground for cross examination.
Mr Rubaya hit back arguing that the independence of the Prosecutor General does not mean the office is above the law and an aggrieved litigant can approach the court for remedy.
The lawyers argued that a charge of rape centres on three pillars that is the complainant, first person to be told and a medical affidavit such that proceeding to trial in the absence of these three pillars makes the whole process unconstitutional.
They said prosecutors were acting outside their prosecutorial guidelines which were clear that prosecution cannot happen in the absence of sufficient evidence.
Mr Rubaya said the withdrawal by a complainant cannot be ignored as it means there would be no sufficient evidence to sustain a trial.
It is also their argument that there are no medical affidavits to support the cases and proceeding to trial under such conditions will be an exercise in futility and an abuse of court process and a violation of Magaya’s rights.
“A complaint of rape originates from a complainant, while a charge originates from the State. Yet a charge cannot exist in a vacuum, it is founded upon the complaint,” said Mr Rubaya.
“Without the complaint, the charge collapses. While the State enjoys the prerogative to prosecute, it cannot lawfully proceed when it has lost both the complaint and its sole witness.
“To do so is not an exercise of lawful authority but a hollow performance masquerading in the name of the law.”
Magaya believes the prosecution is crying more than the bereaved, which he thinks is becoming a violation of his constitutional rights to a fair trial.
“The upshot of all this is that the state wants to abuse the process at Magaya’s expense and wishes to do so for reasons that have nothing to do with the law. It is submitted with respect that this process has become unconstitutional,” the lawyers argued.
“Why should the prosecution drag a withdrawing complainant kicking and screaming to the criminal court for her to testify against the accused.
“Whose case then is going to be prosecuted if the complaint has been withdrawn considering the nature of the offence which is alleged to be a sexual attack on the very same complainant and not any other individual or any other woman for that matter.
“This is where one would ask why the prosecution is crying more than the bereaved?”
The lawyers said it was futile to proceed to trial when an alleged victim denied further prosecution.
“The alleged victim of the alleged offence, which is personal in nature, has said NO! to the further prosecution of the applicant,” they said. “Whose bidding is the prosecution doing? Whose justice when the complainant has withdrawn from the case?”
The lawyers alleged that the State is withholding medical evidence and not giving Magaya results of a DNA test they “forcibly” obtained from him while he was in custody.
“Applicant was then taken from Harare Remand Prison to Parirenyatwa Hospital against his will and in the absence of his legal practitioners, where his DNA was extracted,” they said.
“The applicant has not been served with the results of that DNA test, nor has he been informed of what has happened to the samples. The applicant has the right to be given adequate facilities to prepare a defence, which includes the right to challenge or adduce evidence regarding this DNA.
“The State’s failure to disclose these results, which were obtained through an order of court only to subsequently abandon the use of such evidence without any justification, suggests that the results may be negative and do not support the State’s case. This conduct and decision violate applicant’s absolute right to a fair trial.”
Magaya has also taken issue with the conduct of the police and prosecutors in the matter which he says warrants the intervention of the apex court.
“Ms Tendayi Shonhayi has denied the existence of both the withdrawal affidavit and the letter from a complainant in one of the charges against applicant,” said the lawyers.
“Ms Shonhayi went further to reveal that the State was in the process of amending the statement of another complainant, who resides in Ireland.
“These admitted revelations, made openly on record, by a senior official in the NPA smack of prosecutorial impropriety, where the prosecutors conflate their prosecuting functions with investigations, resulting in them clearly usurping the role of the police services to conduct investigations.
“In this case, the public prosecutors admitted to amending a witness statement, clearly dissatisfied with the original version because it did not advance the narrative they intended to choreograph against applicant.”
The defence also argued that police officers are working with prosecutors to violate Magaya’s rights regarding the amending of the complainant’s statement.
“This conduct is not only unlawful, but prejudicial. It reveals bias and favour towards the complainant, while subjecting Applicant to a case that has been panel-beaten into shape through prosecutorial interference,” the lawyers argued.
Magistrate Mr Francis Mapfumo is expected to make a ruling on May 29.
