Source: Mandiwanzira seeks stay of proceedings | The Herald March 8, 2019
Tendai Rupapa Senior Reporter
Former Information Communication Technology and Cyber Security Minister Supa Mandiwanzira is seeking stay of proceedings in the case in which he is facing criminal abuse of office charges.
Mandiwanzira sought the intervention of the High Court to stall proceedings through an urgent application filed at the High Court.
The matter, which had been set for hearing yesterday, was rolled over to today after the State asked for more time to prepare opposing papers.
This culminated in Harare regional magistrate Mr Elijah Makomo delaying delivering his ruling on Mandiwanzira’s application for referral of the matter to the Constitutional Court because the High Court’s ruling will have a bearing on proceedings in the lower court.
Mr Makomo was supposed to deliver the ruling yesterday when Mandiwanzira, through his lawyers Advocates Thembinkosi Magwaliba and Brian Hungwe, notified him of the latest development.
On Wednesday, Mandiwanzira through his lawyers made an application challenging his prosecution on charges which he claimed were not defined in the statute books.
He is seeking to have the Constitutional Court to define the charges under Section 174 (1) (a) (b) of the Criminal Procedure and Evidence Act in line with the country’s Constitution.
He said the Act under which he was being charged was unconstitutional, null and void.
Adv Magwaliba said: “The section does not define what the duties of an officer are, as a result, public officers will operate in fear of transgressing that law because the decision as to what is abuse of duty, is entirely left to the police officers.
“Mandiwanzira couldn’t have conducted himself in a manner contrary to his duties as a public officer because the duties are not defined in the Act and this endows police officers to determine what the parameters of the duties are.
“The Act which creates a criminal offence must be very concise, but that is not the position in terms of Section 174 (1) (a) (b), it is too broad.”
Advocate Magwaliba said the apex court should define whether the section conforms to principles of constitutionality.
The prosecution, led by Mr Michael Chakandida and Mr Tapiwa Godzi, opposed the application saying it was meant to delay proceedings.
Mr Chakandida said: “Accused as a public officer knew his duties and he even stated them when leading evidence.
“It would be absurd if the said section states duties of each and every public officer. He claims that what he did benefited the State, but as State we maintain our position that accused abused his office by hand-picking Megawatt.
“The accused does not mention what it is that is broad or unconstitutional. He also failed to state what the constitutional question is when he was being cross-examined.”