Source: Prof Moyo responds to arrest calls | The Herald October 26, 2016
Daniel Nemukuyu: Senior Court Reporter
Higher and Tertiary Education Minister Professor Jonathan Moyo, who is under fire over allegations of abusing $450 000 from the Zimbabwe Manpower Development Fund (Zimdef) said the police were not ready to arrest him and the courts have no jurisdiction to order his arrest.
Opposing an application by a Harare vendor, Mr Hardlife Mudzingwa to have him arrested on corruption charges, Prof Moyo deposed an affidavit stating that Commissioner-General Augustine Chihuri, who was cited in his official capacity as third respondent, had indicated that he was not ready to arrest him.
To that end, Prof Moyo said no one else had the discretionary power to have him arrested.
“The first member of the ZRP is before the court as the third respondent. The third respondent has filed an affidavit and is not ‘ready’ to arrest me. It is not the eagerness of anyone that brings anyone or places anything before a court of law. The procedure that attends to how a criminal process may be activated does not involve that.
“If the police have no cause to believe reasonably that one has committed a crime, then that is the end of the matter. It renders the suspicion of everyone else, including fourth respondent (ZACC)and applicant’s, unreasonable. No arrest ensues,” said Prof Moyo.
Prof Moyo said the High Court has no jurisdiction to compel such arrests.
“This court has no role to play in the determination of whether or not there is a reasonable suspicion that I have committed an offence. That is the sole constitutional prerogative of the third respondent (Commissioner-General of Police), who may be directed to investigate by the fourth respondent.
“Whether I should be arrested or not, is a discretionary matter within the province of the third respondent, which discretion must be judiciously exercised within strict constitutional guidelines. “It is not a matter upon which this court can give direction.”
Prof Moyo said Mr Mudzingwa’s application was more of a political war waged against him under the guise of an urgent chamber application.
“He has abused the process of court to launch a sponsored political war against me solely to harass and annoy me in the perpetuation of a malicious political agenda against me. “I am a victim — his victim and his sponsors. “I reserve the right to secure legal recompense for this unjustified abuse,” reads Prof Moyo’s affidavit.
Prof Moyo denied the allegations levelled against him.
“I must state at the outset that I deny each and every allegation of impropriety levelled against me in the discharge of my constitutional mandate as a delegate of His Excellency, the President of the Republic of Zimbabwe. I specifically reiterate that I have at all material times faithfully adhered to my oath of office as a public servant. I have loyally and faithfully discharged my constitutional obligations as a law-abiding citizen,” the affidavit reads.
Justice Loice Matanda-Moyo yesterday deferred the hearing of the matter to Friday to allow Mr Mudzingwa’s lawyers to file an answering affidavit and other papers relevant to the case.
In the urgent chamber application, Mr Mudzingwa listed Prof Moyo, Vice President Phelekezela Mphoko, Commissioner-General of Police Dr Augustine Chihuri and the Zimbabwe Anti-Corruption Commission (ZACC) as respondents.
“Pending the confirmation or discharge of the provisional order, an interim relief is hereby granted on the following terms — that third respondent (Dr Chihuri) be and is hereby ordered and directed to bring first respondent (Minister Moyo) before a court of law on the various publicised criminal allegations that he is facing and shall, to the extent that it is necessary, effect his arrest,” read part of the draft of the interim order sought.
In his papers, Mr Mudzingwa said it was his constitutional right as a Zimbabwean citizen to have Minister Moyo “brought before equity”.
Mr Mudzingwa said the court should grant him an order forcing Comm-Gen Chihuri to set in motion the wheels of criminal justice, without the hindrance of VP Mphoko, any Minister, or any authority.
Prof Moyo, Mr Mudzingwa said, must be given the opportunity to prove that he is a true Robin Hood and that the law allows him to be such.
Mr Mudzingwa, who had been arrested before for street vending said, whenever the police took the view that he had committed criminal misconduct, he had been arrested. He said no one ever tried to protect him each time he was arrested except the law and Prof Moyo must also face the music.
Mr Mudzingwa said VP Mphoko’s statement that Minister Moyo could not be arrested without President Mugabe’s consent was wrong and unacceptable at law.
He said what VP Mphoko said made him feel like a second grade citizen. To back his case, Mudzingwa cited Section 56(1) of the Constitution which provides for the equal and fair treatment of each and every person of Zimbabwe.
Furthermore, section 56(3) that states that every person has the right not to be discriminated unfairly on such grounds as their class, political affiliation, economic or social status.