Fidelis Munyoro Chief Court Reporter
Former Energy and Power Development Minister Samuel Undenge’s appeal against a 30-month jail term for abuse of office was thrown out by the High Court yesterday which found that the sentence was not excessive and did not induce any sense of shock and outrage.
He had been convicted in the Magistrates Court for abuse of office after he hand-picked a public relations company for the Zimbabwe Power Company without going to tender.
The rejection of the appeal against both conviction and sentence in the High Court, where two judges sit together in appeal hearings, means Undenge will now serve the full sentence, which he unsuccessfully argued in his appeal hearing, was excessive and induced a sense of shock and outrage.
Undenge could still appeal to the Supreme Court, but in that case he would first have to seek leave to appeal and unless there was even a small possibility of a reversal of conviction or reduction of sentence, it is unlikely that such leave would be granted.
The High Court found no merit in the appeal. He had also wanted the court to consider community service or a fine as appropriate sentences.
But Justice Joseph Musakwa, sitting with Justice Phildah Muzofa, upheld both conviction and the sentence imposed on Undenge.
The judges held the view that following his conviction on a serious offence of criminal abuse of office, Undenge cannot plead that the sentence imposed on him was severe.
“Ultimately, sentence is a matter of discretion. It cannot be said that the sentence that was imposed in the present case is disturbingly inappropriate,” said Justice Musakwa, dismissing the appeal in its entirety.
The judge said the seriousness of the crime that Undenge was convicted of arose from undermining public confidence in public administration and the subversion of corporate governance.
Undenge, who was represented by Mr Alec Muchadehama, advanced an argument of selective prosecution, which the judge rejected.
His main ground of appeal was that he was a victim of political machinations following change of Government in November 2017, although the offence had been committed the previous year.
“I do not think that the appellant’s real defence is that of selective prosecution,” said Justice Musakwa. “If that is, then it is a tacit acknowledgment of wrongdoing save that his gripe is that he fell in the wrong political camp when the decision to prosecute him was made.”
Undenge also sought to argue that there was no evidence given of his duties as a public officer, and so it was not proved beyond reasonable doubt that he acted contrary to his duties.
The court conceded that there is no statute that governs the conduct of Vice Presidents, ministers and deputy ministers, but ruled that the absence of such an Act of Parliament cannot absolve a wrongdoer from criminal conduct.
“The obligation to foster good governance reposes on the State and its agents,” said the judge, adding that, as a minister, Undenge had an obligation to take measures to expose, combat and eradicate all forms of corruption and abuse of power.
The court could not believe Undenge’s explanation on the deal with Fruitful Communications. Justice Musakwa said even going by Undenge’s own explanation, there was everything wrong in him playing second fiddle to Fruitful Communications.
“It is apparent that he subordinated himself to Fruitful Communications. This is because Fruitful Communications proposed the contents of the letter and the appellant adopted them resulting in him directing ZPC to work with Fruitful Communications,” he said.
He was slapped with an effective two-and-half-year term for corruption after prejudicing ZPC of US$12 000.
Charges against Undenge arose sometime in January 2016, after Psychology Maziwisa and Oscar Pambuka took a letter to ZPC from the former minister, directing the company to work with their firm at intervals of six months. Following Undenge’s letter, the electricity generation arm of Zesa Holdings engaged the pair and lost US$12 000.
Mr Edmore Makoto appeared for the State.