UPDATED: Moyo loses Concourt challenge

Prof Moyo

Prof Moyo

Daniel Nemukuyu Senior Court Reporter
Higher and Tertiary Education, Science and Technology Development Minister Professor Jonathan Moyo yesterday lost his constitutional challenge against arrest and will now appear before a magistrate to answer to charges reportedly misallocating over $400 000 from the Zimbabwe Manpower Development Fund (Zimdef) to non-core issues.

Prof Moyo was then “arrested” by the Zimbabwe Anti-Corruption Commission (ZACC) on charges of abusing the funds.

He then rushed to the Constitutional Court, arguing his rights had been violated as ZACC had no arresting powers.

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He argued that a police officer, Sergeant Munyaradzi Chacha, who was on secondment to ZACC, had no powers to arrest him by virtue of the secondment.

The Constitutional Court ruled that the minister deserved no preferential treatment and that he should, like anyone else, follow the normal criminal procedure of arrest and appear before a magistrate.

It was found that he had jumped the gun by approaching the Apex Court instead of challenging his arrest at the lower court. The Apex Court also found that secondment of a police officer to the ZACC did not strip him or her of arresting powers.

Chief Justice Luke Malaba said a magistrate had the leeway to hear evidence from witnesses to clarify any dispute of facts, unlike a Constitutional Court that deals with papers filed before it.

“The Constitutional Court holds that it would not be within its competence to determine the question of the lawfulness of the applicant’s arrest.

“The law governing resolution of the matter required applicant, like all arrested persons, to appear before a magistrate to challenge the lawfulness of his arrest,” ruled Chief Justice Malaba.

The Chief Justice held that Prof Moyo’s case did not raise sound constitutional issues, hence it failed to meet the test for constitutional matters to be determined by the Apex Court.

“No constitutional matter has arisen in this case. The Constitutional Court has no jurisdiction to determine a matter which is not constitutional,” he said.

Chief Justice Malaba found that the first respondent, Sergeant Chacha, remained a police officer despite the fact that he was seconded to ZACC.

“A police officer does not cease to hold or exercise his office by reason of secondment. From a reading of Section 3 of the Regulations, secondment is when a member of the regular force is transferred to employment outside the regular force in the service of the State upon such terms and conditions as may be fixed by the Commissioner-General,” said CJ Malaba.

“Such an officer continues to have powers vested in a member of the police force, including the power to arrest,” he said.

In terms of Section 24 of the Police Act, one can only cease to be a police officer upon termination of his or her contract.

The court also found that Minister Moyo wasted time by approaching the wrong court.

“The applicant was arrested and the intention was to bring him before a magistrate for initial remand. It is at these proceedings that the applicant ought to have challenged the lawfulness of his arrest,” said CJ Malaba.

“The Magistrate’s Court would have had competence to conduct the factual inquiry into whether or not the first respondent (Sgt Chacha) formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement,” the court ruled.

Minister Moyo’s charges include criminal abuse of office, fraud, corrupt concealment from principal of personal interests in a transaction and obstruction of the course of justice.

Minister Moyo, his deputy Dr Godfrey Gandawa and Zimdef finance director Nicholas Mapute, are accused of abusing nearly $500 000 belonging to Zimdef.

They were arrested by the Zimbabwe Anti-Corruption Commission.

Dr Gandawa and Mapute have since been placed on remand at the Harare Magistrates’ Courts.

Before the trio’s court appearance date, the minister instructed his lawyer Mr Terrence Hussein to file an urgent interdict at the Constitutional Court.

In his application, he questioned the constitutionality of his arrest by Zacc and the role played by the police.

He argued that Zacc did not have the power to arrest and detain suspects in terms of the Constitution.

He also argued that the Prosecutor-General did not, in terms of the Constitution, have the power to order the police to arrest an individual.

He sought to stop his appearance in court, describing it as an illegality.

Prosecutor-General Advocate Ray Goba argued that a docket that reached his office showed that there was an “overwhelmingly reasonable suspicion” that the politician and his accomplices committed fraud, theft, money laundering and criminal abuse of office.

To that end, Adv Goba urged the court to dismiss with costs the constitutional challenge by Minister Moyo and instead direct that he immediately surrender himself to the investigators and appear before a magistrate to answer to the charges.

Adv Goba and his team of chief law officers also picked from the docket that Minister Moyo authorised various transactions in which Zimdef lost close to $500 000.

The PG said Minister Moyo did not deserve to be treated differently from other suspects.

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  • Hacha Duke of Enkeldoorn

    Good – now take him to jail pending appearance before a Magistrate – and no preferential treatment please.

  • Chamangwiza WeHarare

    This was clear abuse of the judiciary. How can an arrest be said to be unlawful when a person in his own words did “confess” to have misappropriated funds. We are deep in the midst of a constitutional crisis and something must now happen otherwise we are doomed. This just vindicates the anti corruption commission whose position has always been that he must have his day in court. Mutodi, Matemadanda and many others have been arrested and appeared in court on lesser charges but you have a self confessed criminal roaming our streets hiding behind a finger and getting protection from a whole VP. To make matters worse, in a glaring lack of appreciation of the existence of the three pillars of state namely, the executive, the judiciary and the legislature and at a party political rally a first lady who is nowhere in our constitution makes a declaratory remark to the effect that he is innocent. The three pillars derive their existence and authority from the supreme law of the land. Our constitution. If that is not unconstitutional then what is? If that remark is not in contempt of our courts then what is? If such remarks are not treasonous then what is? If that remark is not a sure sign that all is not well then what is? Fellow countrymen, we are indeed in a constitutional crisis and we need to clean up this mess. It is certainly unpalatable to all sane Zimbabweans. This has to be corrected and a lot more has to be corrected. We are indeed in the midst of a serious constitutional crisis.

  • Gamba ReManyika

    Waal! Let justice prevail and let no politics prevail. If he should be persecuted, let it be the law persecuting him, not politics of hatred. Am happy that our courts have finally found its spine to fight corruption. Let’s go the whole way. Amen!

  • MARTZ

    jail bound…

  • Cde Mzvinavhu(Prof)

    He can just be arrested or summoned to a police station and get charged. Put on remand and then trial date. He should be presumed innocent until the court decides. Why all the fuss anyway?

  • yowe

    The state will NEVER prosecute Jonso

  • Cde Samanyanga Dotito

    Yes there is a similar case reported elsewhere. Goodson Nguni should also follow it with the zeal he did on the ZIMDEF case. Otherwise he should resign from his position .

  • eliah

    Yes yes, others have been paraded and dressed down at rallies and others skinned alive as they giggle at same rallies as Amai does what she knows best.