Chronicle Editor
Fungai Lupande Court Reporter
The Constitutional Court will, for the first time, have to decide on the constitutionality of prosecuting a rape suspect following the withdrawal of a report by the complainant.
This comes after Harare magistrate Mrs Vongai Muchuchuti-Guwuriro yesterday granted Prophetic Healing and Deliverance Ministries leader Walter Magaya’s application for referral of his rape case to the Concourt.
Mrs Muchuchuti-Guwuriro removed Magaya from remand pending the Concourt’s decision on whether or not his alleged rape case should be referred to the High Court after the complainant indicated that she lied against him.
The State insisted on indicting Magaya for the trial at the High Court, arguing that it never tendered the complainant’s withdrawal affidavits to the court and that the withdrawal was not genuine.
Mrs Guwuriro ruled that the Concourt should decide whether or not the decision by the Acting Prosecutor-General to indict Magaya when the complainant confessed that the rape allegations were false violated his constitutional rights.
“The backbone of the application was that the complainant indicated her intention to withdraw rape charges against the accused,” said Mrs Guwuriro.
“The complainant made an about turn and made a confession that the allegations are false. The application is not frivolous and vexatious and the matter raises constitutional issues. The Concourt has to decide on three issues which are, firstly — was the court in moral defiance in violation of Section 56 (1) of the Constitution of Zimbabwe.
“Secondly, was the liberty of the accused breached in violation of Section 49 (1) (b) and thirdly, is it proper to prosecute him when the complainant said allegations are false?
“Therefore, the application for referral to the Concourt is granted and these proceedings are stayed pending the determination.”
In his application, Magaya, through his defence counsel Advocate Thabani Mpofu said it was a constitutional embarrassment for Magaya to answer to a charge, which was rendered meaningless by the complainant.
“There is no conviction unless there is a testimony of the person who says she was raped. State versus Magaya came because there was a complainant to begin with.
“Now the complainant said I am sorry, I lied. The Prosecutor General’s office does not want to accept the apology. Why does the PG’s office want to go to the High Court? And why at a time when the complainant wants to withdraw the matter?
“State does not disapprove the authenticity of the confession. It is for the Concourt to deal with these issues given that they were never dealt with before.
“When State becomes rogue, it is a constitutional problem, we are not safe with this type of State.”
When the court briefly adjourned, the complainant sobbed uncontrollably while seated in the gallery.
Adv Mpofu intended to call her to the witness stand to substantiate her withdrawal affidavits, but the court objected, saying her withdrawal was already before it through her affidavits.
There was a lighter moment when Magaya complained about a prison officer who was busy taking selfies next to him in the dock during court proceedings.
Online Reporter