adminFidelis Munyoro
Chief Court Reporter
THE corruption trial of Harare businessmen Moses Mpofu and Mike Chimombe involving US$7,7 million allegedly siphoned from the Presidential Goat Pass-On Scheme yesterday took a new twist after the two sought to challenge the composition of the court by questioning the legality of assessors aged over 70.
The two were formerly charged with fraud when they appeared before Justice Pisirayi Kwenda, sitting with two assessors. In all criminal cases tried in the High Court, a judge sits with two assessors and while the judge decides questions of law alone, on questions of fact the court works by majority vote with the three having an equal vote.
The trial could not proceed after the formal charge because Mpofu and Chimombe want the Constitutional Court to rule on the legality of having assessors aged over 70 years sitting with the judge in trial along with other constitutional issues which they want decided before the trial.
Yesterday one of the assessors did not turn up amid reports that he was indisposed and had to be replaced.
“Our clients want certain issues referred to the Constitutional Court for determination,” said Professor Lovemore Madhuku speaking to journalists after the court adjourned.
“These issues relate to, or start with the composition of the bench. We believe that a person who is above 70 years cannot be an assessor. It is obvious that those persons sitting with the judge are over 70-years-old. We would want to challenge that on the basis that it is unconstitutional.
“We want that to be referred to the Constitutional Court and there are a number of other constitutional rights issues. So the court agrees that when we come back tomorrow we start with constitutional issues. The trial will only start after the judge rules against the constitutional relief sought.”
The proceedings yesterday were punctuated with heated exchanges between Mpofu’s lawyer Mr Tapson Dzvetero and the judge. Mr Dzvetero wanted the judge to hear the constitutional issues raised by his client before reading the defence outline.
But the judge was of the view that proper criminal trial procedure be followed, before raising any issues.
“This is not a matter where the accused came here with a Constitutional matter,” said Justice Kwenda.
“He was arraigned for trial and what we expect ordinarily in his defence are issues that are pertinent to the trial. If you consider that the constitutional issue is relevant in his case it must form part of his defence outline. We don’t want to discuss constitutional issues here, but constitutional issues relevant to this trial.”
The judge said the defence outline was already before the court and he had gone through it, hence it should be placed on record and captured electronically. Thereafter, the lawyers would be free to raise their constitutional issues. The court was not refusing to allow the lawyer to amend his defence outline.
But Mr Dzvetero persisted with his argument, inviting censure from the judge who warned him against disrupting the trial.
“I am in charge of this trial, do you understand that? Let us capture what is on paper and put it onto the electronic record. Then when we have finished that process, you can begin to raise your constitutional issues, but I am saying the defence outline is already before us.
“And a preliminary procedure practice is that whatever is on paper must be read so that this machine can capture, because eventually if anyone wants to deal with the outcome of this case, they will have to depend on this record. As soon as that is completed you can then motivate your constitutional issues, you can ask for referral, a declaratory.
“I don’t know why you are impeding progress. Why, like I said, even if, assuming you were to succeed which you will never, you are preventing the court from directing that a defence outline should be read into the machine. If you don’t want to raise your issue, we can proceed to trial”.
Prof Madhuku argued that the question was whether his client was before a High Court criminal court. “The view of the second accused (Chimombe) is that we are not in the High Court. We recognise that we are before his Lordship Justice Kwenda. That is all.”
He argued that although his client had pleaded to the charges, he had pleaded to a body that was not a court in terms of the law because the assessors were unconstitutionally sitting on the bench.
“The assessors are not assessors under our law. So, if we are to proceed which is what the court has directed at what point will we be allowed to raise that point of law,” Prof Madhuku said.
Justice Kwenda, after hearing submissions from the defence team, noted that the trial would not commence anytime soon as the court has to deal with the constitutional issues being raised. He said the trial would only start after the court decided on the point of law being raised. He then ordered both the defence and prosecution counsel to make their submissions today.
Charges against the two arose after they allegedly forged a ZIMRA tax clearance certificate and a NSSA compliance certificate in the name of Blackdeck Private Limited and attached them in a bidding document which they submitted to the Ministry of Lands, Agriculture, Water, Fisheries and Rural Development for a tender for the supply and delivery of goats for the Presidential Goat Pass-on Scheme.
They misrepresented that the company was in full compliance with ZIMRA and NSSA requirements. However, later investigations showed that the QR code and the reference on the NSSA compliance certificate were issued to a different company, and that Blackdeck (Pvt) Ltd was deregistered from the NSSA system in January 2016.
Further, investigations revealed that Blackdeck (Pvt) Ltd was not issued with a ZIMRA tax clearance certificate for 2021 and that the QR code on the forged tax clearance certificate belonged to a different company.
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