Source: Jonathan Moyo’s case falling apart | The Financial Gazette November 10, 2016
THE Zimbabwe Anti-Corruption Commission (ZACC)’s case against Higher and Tertiary Education Minister Jonathan Moyo and his deputy Godfrey Gandawa might go up in smoke because of bungling on the part of the anti-graft watchdog as well as political pressure from warring ZANU-PF factions, the Financial Gazette heard this week.
ZACC is accusing Moyo of conniving with Gandawa and some officials within his Ministry to fraudulently siphon more than US$400 000 from the Zimbabwe Manpower Development Fund (ZIMDEF), for personal gain.
While the Tsholotsho North legislator has conceded to using part of the ZIMDEF funds to buy bicycles and motor cycles for traditional leaders in his constituency, he is still pleading innocent because the money he is alleged to have abused was used to bankroll the ruling ZANU-PF party.
Observers have been keen to see Moyo having his day in court to answer to the charges.
But legal experts averred this week that ZACC – long accused of being a toothless bulldog – might have undermined its case by arresting Moyo and attempting to bring him before the courts last week without following due process.
They argued that at law, once such scenario arises, what it means is that the matter could be technically struck off the roll and might have to proceed by way of summons, that is, if the State succeeds in gathering enough evidence.
The Higher Education Minister, one of the sharpest brains in the ruling party, has already capitalised on ZACC’s clumsiness by successfully challenging the manner he was arrested at the Constitutional Court (ConCourt).
In his ruling on Moyo’s application last week, Chief Justice Godfrey Chidyausiku, said “the continued opposition to the application by ZACC was driven by something else other than legal considerations”.
Chidyausiku’s observations, according to legal experts, reinforced claims by Moyo that the anti-graft body could be pursuing a factional agenda against him.
There is therefore a real possibility that tables might turn, with the hunter becoming the hunted.
Moyo is already questioning the appointment of acting National Prosecuting Authority(NPA) Ray Gowa on the basis of his previous conviction for dishonesty and defeating the course of justice by the High Court of Namibia.
He is also querying the suitability of Goodson Nguni to hold office at ZACC notwithstanding his disqualification from appointment on account of his conviction in South Africa and whether the statutory body has arresting powers.
Regarding the latter, he got some relief last week when Chidyausiku suspended all criminal proceedings against him until the determination of a constitutional challenge on whether ZACC has arresting powers.
Moyo has distinguished himself as one of the potential spoilers of Vice President Emmerson Mnangagwa’s alleged bid to succeed President Robert Mugabe when he decides to quit active politics.
Along with the ruling party’s national political commissar, Saviour Kasukuwere and Patrick Zhuwao, President Mugabe’s nephew, they constitute a triumvirate in ZANU-PF agitating for a life presidency of some sort.
As such, Mnangagwa’s backers have been burning the midnight oil to finish him off politically.
In July, Mnangagwa came out for the first to publicly deny allegations that he was aspiring for the top office.
Despite the denials, his rivals are unrelenting in their attacks to quash his bid.
Moyo has even threatened to sue Mnangagwa, along with presidential spokesman George Charamba and Christopher Mushohwe, the Information Minister, for fomenting his troubles.
United Kingdom-based law lecturer, Alex Magaisa, this week said ZACC’s errors could completely jeopardise their case.
“The lesson in this is that law enforcement agents like ZACC and police must ensure that they get their procedural details right. If they fail to adhere to procedural rules, they could avail easy opportunities for the accused to escape prosecution,” he wrote on his personal blog.
“If the court finds that ZACC acted unlawfully, it will have to make an order whether to stop prosecution permanently or make such an order as is appropriate in the circumstances,” he continued.
Harare lawyer, Philip Nyakutombwa, said the case is of such a sensitive and public nature that it is difficult to comprehend how or why ZACC could act outside its mandated power, thereby exposing the entire case to technicalities.
“They (ZACC) are conversant with their legal mandate and we assume they have the human capital and skills to know how to discharge of their mandate,” said Nyakutombwa.
“The outcome from the Constitutional Court is critical to the Magistrates Court case and compelling arguments are being made such that without having gone into the merits, the case may become a stillbirth,” he added, suggesting that the whole process could end up being reduced to mere political drama.
“One gets the feeling that this could have also been an orchestrated exposé that is meant to flex muscle as it were and show that the powers-that-be have damning information on all their politicians and can use it as and when they please,” he opined.
Nyakutombwa, however, thinks Mo-yo, if political aberrations are to be set aside, should still have his day in court.
“On merit, the accused must have his day in court; the State must prove its case beyond reasonable doubt and ultimately he must pay back the money,” he said.
Another lawyer, Takudzwa Mafongoya, said Moyo could might sue ZACC for wrongful arrest.
“He can sue for any prejudice suffered if it is proved that he was illegally arrested,” the lawyer said, adding that ZACC’s only option would be to ask the police to arrest Moyo since the Constitutional Court ruled that it does not have arresting powers.
“If ZACC does not have powers to arrest, it can still refer the matter to the police to arrest him.
“It might have bungled and raised dust, but if it has evidence, that will speak ultimately,” he said.
The NPA has conceded that it could not proceed to prosecute Moyo since his arrest was improperly handled.
While Moyo’s rivals could press hard to have him prosecuted, the political gamesmanships might complicate matters.
That the case has been consumed by heavy political influence cannot be disputed.
Twice, President Mugabe has ostensibly blocked Moyo’s arrest.
The first incident was when ZACC waylaid Moyo at the ZANU-PF national headquarters in Harare last month wanting to effect an arrest, but the move flopped after President Mugabe intervened.
He was also supposed to appear in court on Friday last week but reports suggested that President Mugabe ordered ZACC to allow him to skip court so that he could attend a graduation ceremony at the National University of Science and Technology.
The anti-graft body falls directly under President Mugabe’s office.