Online Reporter
Paul Pindani in CHINHOYI
A SIX-MONTH nightmare, in which one of the top medical personnel in Mashonaland West found his name being dragged into a corrupt recruitment exercise for student nurses, has ended.
Dr Gift Masoja, the Makonde District Medical Officer, walked a free man after being cleared of charges of obstructing or defeating the course of justice.
He was arrested in Chinhoyi on December 4 last year.
The charges emanated from allegations that he refused to hand over his cellphone, an iPhone 14, to ZACC investigators.
ZACC were investigating a corrupt ring in which student nurses were allegedly being forced to pay bribes to secure placements on nursing programmes at Chinhoyi Provincial Hospital.
Dr Masoja pleaded not guilty to the charge. He was represented by Tungamirai Kennedy Chamutsa of Chamutsa and Partners while Rutendo Ngazimbi appeared for the State. Chamutsa, argued that his client was exercising his constitutional right to privacy when he refused to hand over his phone.
“Shielded by his constitutional right to privacy, the medical chief was under absolutely no legal obligation to surrender his private data and communications simply because state agents demanded it,” Chamutsa said during the trial.
Abhinei Gwezhira, a legal officer at ZACC, and his colleague Brian Musokeri, invited Dr Masoja for questioning at the ZACC offices at Orange Groove Motel.
During the interview, they requested Dr Masoja to hand over his cellphone to assist in their investigations. Dr Masoja refused to hand over his phone and stormed out of the offices and was followed by the two investigators.
When they caught up with the doctor, they advised him that he was under arrest for his failure to cooperate with the investigation.
In her judgment, Chinhoyi Resident Magistrate Nyasha Marufu, said the evidence of the two State witnesses was inconsistent.
“Gweshira testified that Masoja was asked to hand over his phone and refused.
“Musokeri, on the other hand, testified that the accused fled after being told that his phone might be taken, not after an explicit demand.
“These contradictions go to the heart of the charge. The investigating officer, who is the primary witness on the conduct of the interview, stated in terms that no demand was made, only a possibility was raised.
“If no demand was made, the accused cannot be guilty.”
She added:
“ZACC investigators are not police officers and do not hold that designation under Zimbabwean law.
“He had attended voluntarily and was free to decline to answer questions or surrender his property, subject to any lawful demand.
“No lawful demand, supported by a warrant or statutory authority, had been established.
“The forensic examination of the phone ultimately obtained yielded no incriminating evidence.
“While this does not exonerate the accused on the obstruction charge, it supports the accused’s testimony that he had nothing to hide and was simply asserting his right to due process and legal representation.”
She said Dr Masoja’s explanations, as to why he was reluctant to hand over his mobile phone, were valid.
“The accused’s explanation for not surrendering the phone that is was Government property containing sensitive patient information.
“It is a coherent explanation consistent with an official exercising reasonable caution rather than a guilty mind.
“Having considered the evidence as a whole, the applicable law, and the submission of counsel, the court finds the charge under Section 184 of the code was improperly framed in respect of the obstruction alleged, as ZACC investigators are not police officers.
“The ZACC officers did not comply with the procedural requirement of Section 13(d) of the ZACC act and had no warrant of search and seizure. “The accused’s conduct asserting his right to legal representation and declining to hand over a Government-issued phone containing sensitive patient information is consistent with an innocent person exercising his constitutional rights and is not inconsistent with innocence of the charged offence,” she said.
