Tendai Rupapa Senior Court Reporter
SUSPENDED University of Zimbabwe (UZ) Vice Chancellor Levi Nyagura, accused of illegally awarding former First Lady Grace Mugabe a PhD, now wants his matter referred to the Constitutional Court (Concourt). He raised constitutional grounds yesterday which he said needed to be determined by the apex court.
His trial, which had been scheduled for yesterday, failed to kick off as a result.
Through his lawyer Advocate Lewis Uriri, instructed by Muzangaza Mandaza and Tomana Legal Practitioners, Nyagura made an application for referral of the matter to the Concourt citing infringement of constitutional rights to a fair trial.
In his application, Adv Uriri argued that Messrs Tapiwa Godzi and Michael Chakandida from the Presidential Special Anti-Corruption Unit, who are representing the State, had no authority to prosecute.
He said the Acting Prosecutor-General by granting the pair authority to prosecute when they are not employees of the National Prosecuting Authority (NPA), was in breach of accused’s right to the equal protection and benefit of the law, as well as right to a fair trial.
Adv Uriri made reference to Section 259 (10) of the Constitution, saying people who can assist the PG are employed by a board provided by an Act of Parliament.
“People that can assist the PG are provided for by the statute and my learned friends are not employed by that board, but employed directly by the Office of the President and Cabinet,” he said.
“If there is going to be conferment of prosecutorial powers on persons other than the NPA, such powers must be conferred by an Act of Parliament.
“A public prosecutor is intended by the Constitution to be independent, impartial and not subject to the direction and control of anyone, this is according to Section 260 (1) of the constitution. Your worship, my learned friends are under the control of the Office of the President.
“Their loyalty lies with that office which employed them. They serve at the pleasure of the President. Is the accused person going to have a fair trial?”
Adv Uriri raised three questions emanating from his submissions which he said could only be dealt with by the highest court in the land.
“Your Worship, this application for referral is brought pursuant to Section 175 (4) of the Constitution which provides that if a constitutional question arises before you and a part to the proceedings request that the matter be referred to the Concourt then you are obligated to make that reference unless you are of the view that the request is frivolous and vexatious,” he said.
In response, Mr Godzi submitted that Nyagura’s application was meant to derail proceedings and should be dismissed.
He argued that Section 5 of the Criminal Procedure and Evidence Act gives the PG powers acting independently to issue authority to prosecute to certain category of people that included any legal practitioner.
“Section 258 of the Constitution gives the NPA as headed by the PG the sole responsibility of instituting and undertaking criminal prosecuting on behalf of the State,” he said.
“Further, the Constitution guarantees prosecutorial independence of the NPA. The PG makes his decisions independently and is not subject to direction and control of anyone. Section 260 in this regard is relevant.
“The Constitution itself authorises by a way of an Act of Parliament for the PG to delegate his prosecutorial powers to qualified persons outside the NPA to prosecute on his behalf.
“We have police prosecutors, are they in the employment of the NPA? What matters is they were duly issued with authority to prosecute in terms of the law.”