Source: “Acting PG position illegal”: Lawyer | The Financial Gazette August 4, 2016
By Andrew Kunambura and Nyasha Chingono
HUMAN rights lawyer, Beatrice Mtetwa, who is representing four senior members of the Zimbabwe National Liberation War Veterans Association (ZNLWVA) on trial for undermining the authority of President Robert Mugabe, on Wednesday charged that acting Prosecutor General (PG), Ray Goba, has no power to authorise prosecutions in the country.
Goba was appointed acting PG by President Robert Mugabe on July 8 following the suspension of Johannes Tomana.
Tomana is facing several counts of criminal abuse of office and could lose his job should a tribunal set up to investigate him recommends so.
Mtetwa said Goba’s appointment was unconstitutional because there is no provision for an acting PG in the national charter.
She was giving notice of the defence council’s intention to oppose the placement on remand of ZNLWVA secretary general, Victor Matemadanda; national political commissar, Francis Nhando; vice chairman, Headman Moyo and the association’s Harare provincial executive member, Wayne Bhila.
Presiding magistrate, Vakayi Chikwekwe, released the quartet on US$300 bail each after the State, represented by Tapiwa Kusena, and the defence consented to bail.
Charges against them arose after a stinging communiqué that strongly criticised President Mugabe’s administration was issued at the end of a ZNLWVA meeting held on July 21 in Harare.
Mtetwa, who is being assisted by human rights lawyer, David Drury, said Goba could not initiate prosecutions since his appointment was unconstitutional.
She also gave notice that when trial opens on September 5, she would challenge the validity of the prosecuting certificate issued out by Goba.
Legally, for a trial to proceed, the PG must issue a certificate authorising the prosecution.
“I have been handed the prosecuting certificate here singed by someone calling himself acting prosecutor general. Neither the Constitution nor the National Prosecution Act (which gave birth to the National Prosecuting Authority) provides for the position of an acting prosecutor general. So there is no proper certification authorising the prosecution, your worship,” argued Mtetwa.
“His appointment was unconstitutional because it did not follow the procedure of the appointment of a judge as required by section 259 of the Constitution,” she said.
Mtetwa told the court that the State had breached three other sections of the Constitution and violated rights of the abused.
She accused the State of violating section 49 and 50 of the Constitution by unnecessarily detaining suspects and denying them the right to liberty and legal representation.
She was specifically referring to the case of Matemadanda and Bhila who were picked up on Monday when they came to attend the bail hearing of their colleague, Douglas Mahiya.
She said the State was abusing the 48-hour pre-trial detention facility to unnecessarily keep suspects incarcerated, thereby denying them the right to liberty which is guaranteed by the Constitution.
Section 50 (2b) says: “Any person who is arrested or detained for the purpose of bringing him or her to court or for an alleged offence must be bought before a court as soon as possible or in any event, not later than 48 hours after the arrest took place or detention began.”
Mtetwa said: “Two of the accused persons were detained on Monday whereupon a warned and cautioned statement was issued. The police had nothing to do with them for the whole of yesterday (Tuesday) and they could easily have been before you by this time yesterday. The right to liberty, as envisaged by section 49 of the Constitution was violated because there was no reason to keep them incarcerated, especially given that they presented themselves for arrest.”
“It is a breach of the Constitution to keep accused persons in detention for the fun of it. We will want the State to prove that this detention was necessary,” she further submitted.
She further said the State had violated section 23 of the national charter which compels “all State institutions and agencies of government at every level to accord due respect, honour and recognition to veterans of the liberation struggle”.
She also gave notice to challenge remand on the basis that the communiqué they issued at the end of their meeting did not constitute the offence they now stood accused of by the State.
“We will contend the placement on remand because contents of the document did not constitute an offence, or if they did, there is no basis whatsoever to link it to the accused persons,” she said as she presented the defence outline.
In his bail ruling, Chikwekwe ordered each of the four to continue residing at their given addresses and report twice at the nearest Zimbabwe Republic Police Criminal Investigation Department office.