Tendai Rupapa Senior Court Reporter
Regional magistrate Mrs Sandra Mupindu yesterday referred to the Constitutional Court the case in which two soldiers are accused of trying to petrol-bomb the First Family’s Alpha Omega Dairy Farm for determination on whether or not someone who is not the Prosecutor- General can authorise prosecution of suspects on terror-related charges. The State reinstated the charges of possession of weaponry for sabotage against Solomon Makumbe (29) and Silas Pfupa (37), which had been earlier withdrawn before plea on the instructions of Prosecutor-General Johannes Tomana.
The pair’s lawyers – Mr Shingai Mutumbwa, Mrs Gamuchirai Dzitiro and Mr Taurai Mandiki – made an application to except to the summons compelling the pair to appear in court to answer to the charges on the basis that Mr Tomana did not authorise their prosecution as is required in terms of Section 34 of the Criminal Law (Codification and Reform) Act.
On the other hand, prosecutor Mr Michael Reza argued that the National Director of Public Prosecutions, Mrs Florence Ziyambi, has delegated authority to exercise the PG’s duties.
However, Mrs Mupindu said there was need to seek guidance from the superior court for clarity and interpretation of the section cited by the defence.
She said serious constitutional issues arose from the defence’s application more particularly regarding the powers of the PG.
What has become the bone of contention is whether the PG can delegate what has been delegated to him.
“The court is ordering both parties to expeditiously prepare their papers within 14 days.
“I am referring this matter to the Constitutional Court in terms of Section 175 (4) of the Constitution,” she said. The defence team argued that unless Mr Tomana was going to testify in court that he gave authority, the summons were inadmissible.
“Even if this court was to find that the PG authorised Mrs Ziyambi to exercise the powers conferred to him by Section 34 of the code, I respectfully submit that such delegation would be wrong, unlawful and invalid,” Mr Mutumbwa said.
Tomana is on bail for criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice after he allegedly ordered the release of Makumbe and Pfupa and turned them into witnesses.
Pfupa and Makumbe are attached to 1 Field Regiment and Zimbabwe Intelligence Corps, respectively. The pair’s second attempt to have the matter held in camera was dismissed on Tuesday by Mrs Mupindu.
Their alleged accomplice Owen Kuchata (34), who is the leader of Zimbabwe People’s Front, pleaded guilty to the charges and was jailed nine years. Another suspect, Borman Ngwenya (30), is on trial.