Ma­gaya ‘rape’ case to be re­ferred to Con­court

Chronicle (Zimbabwe) - - National News - Tendai Ru­papa Harare Bureau

Lawyers rep­re­sent­ing Prophetic Heal­ing and De­liv­er­ance Min­istries leader Prophet Wal­ter Ma­gaya, who is fac­ing rape charges, yes­ter­day no­ti­fied a Harare court of in­ten­tion to re­fer the mat­ter to the Con­sti­tu­tional Court after the prose­cu­tion in­sisted on in­dict­ing Ma­gaya for trial at the High Court, de­spite the com­plainant’s with­drawal of charges.

Led by Ad­vo­cate Tha­bani Mpofu and in­structed by Rubaya and Chatam­budza le­gal prac­ti­tion­ers, the lawyers raised con­sti­tu­tional is­sues that need to be de­ter­mined by the apex court.

They are chal­leng­ing a de­ci­sion by Chief Law of­fi­cer Mr Michael Mu­gabe who in­di­cated to the court that the prose­cu­tion in­tends to in­dict Ma­gaya for trial at the High Court.

Adv Mpofu said this sub­mis­sion was a tainted in­ten­tion. He said the com­plainant con­fessed to the act­ing Pros­e­cu­tor Gen­eral Ray Goba that she was not raped, but that she had lied against Ma­gaya.

Said Ad­vo­cate Mpofu: “The State’s in­ten­tion is not only tainted, it is not in ac­cor­dance with sec­tion 65 and 66 of the Crim­i­nal Pro­ce­dure and Ev­i­dence Act. It is also not in ac­cor­dance with sec­tion 56 (1) and 69 (1) as well as the lib­erty guar­an­tee as set out in the Con­sti­tu­tion,” he said.

“We are aware of two things - that the State has been ad­vised by the com­plainant in writ­ing that she does not wish to pur­sue the mat­ter. The se­cond and most fun­da­men­tal one is that the com­plainant has made a de­ci­sion and ad­vised the State that the com­plaint she made is false.

“For th­ese rea­sons, and bear­ing in mind that there are two pro­cesses, the first be­ing in­ten­tion to in­dict and the se­cond be­ing the com­mit­ter in terms of the ac­cused, there­fore be­fore there is com­mit­tal, we are en­ti­tled to chal­lenge the in­ten­tion to in­dict.”

The de­fence team then told the court that to but­tress their ar­gu­ment, they wanted to call the com­plainant to the wit­ness stand to con­fess be­fore the court.

“We would like to call the com­plainant to the wit­ness stand so that she can say be­fore this court what she said to the PG in my pres­ence and in the pres­ence of the State coun­sel this morn­ing,” he said. The woman was seated in the gallery. How­ever, the State ob­jected to the ap­pli­ca­tion ar­gu­ing that it was un­prece­dented for the de­fence to use a State wit­ness.

“There is no law which al­lows ac­cused per­sons to chal­lenge in­dict­ment at the High Court. Is­sues that arise after that are tri­able. It has never hap­pened in our ju­ris­dic­tion and the court should not en­ter­tain the ap­pli­ca­tion,” he said.

Adv Mpofu on the other hand ar­gued that an ac­cused per­son could not be stopped from mak­ing any ap­pli­ca­tion.

“I am go­ing to mount this ap­pli­ca­tion in a man­ner that I deem fit to pro­tect my client’s rights. This is a pre­lim­i­nary ap­pli­ca­tion. There is no trial at this stage so there are no State wit­nesses to talk about since they are wit­nesses for jus­tice. This morn­ing in my pres­ence, the com­plainant told the State the po­si­tion she had adopted,” he said.

Mag­is­trate Mr Vakayi Chik­wekwe ruled that de­spite the wishes of the com­plainant, — the State could pro­ceed to trial since it is domi­nus litus in the mat­ter.

“The court can­not stop the State to in­dict the ac­cused per­son. It is the State, not the com­plainant, which has that con­sti­tu­tional man­date. Com­plainant is just a wit­ness, hers is a mere per­sua­sion which is not bind­ing.”

Adv Mpofu sub­mit­ted that the court had made a rul­ing on the in­dict­ment is­sue when he had not ar­gued his ob­jec­tion.

“We wanted to op­pose the ap­pli­ca­tion for in­dict­ment on the ba­sis of the ev­i­dence that we were go­ing to lead from the com­plainant,” he said.

Mr Chik­wekwe how­ever gave the de­fence the green light to call any wit­ness of their choice when mak­ing their ap­pli­ca­tion for re­fer­ral of the mat­ter to the Con­court.

The lawyers will file their writ­ten sub­mis­sions for the ap­pli­ca­tion for re­fer­ral to­mor­row and the State will file their re­sponse on De­cem­ber 12.

The mat­ter will be back in court on De­cem­ber 19 when both par­ties are ex­pected to make oral sub­mis­sions to sup­port their writ­ten ones.

A man dis­plays some pi­rated CDs for sale along 9th Av­enue yes­ter­day. Mu­sic piracy seems to be on the in­crease de­spite po­lice claims that they are win­ning the war against the prob­lem. Pic­ture By Den­nis Mudza­miri

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