Fidelis Munyoro Chief Court Reporter
Former Minister of State for Midlands Provincial Affairs Jason Machaya’s bid to have his abuse of office charges dropped has flopped after the High Court threw out his application due to lack of merit.

Machaya (65) is being charged along with the Midlands provincial planning officer Chisainyerwa Chibururu (47) for allegedly annexing 1 000 stands worth US$900 000 owned by the State through the Ministry of Local Government, which was contrary to Government policy.

The pair approached the High Court seeking a stay of criminal proceedings pending the determination of the application for review lodged against a dismissal of their exception to the charges against them. Justice Joseph Musakwa last week dismissed the pair’s application for lack of merit.

In his view, the judge did not see the two succeeding in their quest to set-aside the dismissal of their exception by way of review.

“It is evident that the applicants have not demonstrated how they were prejudiced in their defence. It follows then that the application for stay of proceedings be and is hereby dismissed,” said Justice Musakwa.

Machaya argued as part of the exception that the post of the provincial governor or resident minister was abolished by the present Constitution.

He sought to convince the court that his continued holding of such office after the coming into operation of the Constitution was illegal.

Justice Musakwa was, however, not convinced by Machaya’s contention.

“It is irrelevant whether the first applicant was a Governor or not. What needs to be proved is whether he held a paid office in the service of the State. This accords with the definition of public officer as provided in Section 169 of the Code,” ruled Justice Musakwa.

Machaya’s application was centred on what constitutes commonage and sought to rely on the Manual for Management of Urban Land to strengthen his case.

His lawyer Mr Alec Muchadehama submitted that what constitutes commonage is 10 percent of the available land as at the time of transfer.

Mr Muchadehama said if 3 336 stands were involved, then 10 percent of that would 336. He further argued that since no transfer of land had taken place there was no triable issue.

The lawyer also stressed that the land in issue is State land and not commonage. Mr Edmore Mavuto from the National Prosecuting Authority counter argued that courts rarely interfere with uncompleted proceedings such as the present case.

He was of the view that the intended review had no prospects of success. Mr Mavuto also submitted that an exception related to a defect in a charge. Thus, he added, the charge preferred against the applicants was not defective.

Charges against Machaya arose sometime between 2011 and 2017, when he used his official powers and acquired 1 000 residential stands out of 3 000 that were available in Mapfungautsi contrary to Government policy..

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