FORMER Vice President Phelekezela Mphoko yesterday notified
the court that he wants to approach the Constitutional Court to determine
whether he is still entitled to Presidential Immunity as set out in Section 98
of the Constitution.
The former VP notified the court that he also intends to
approach the upper court to seek clarification on whether he was also protected
under the defence of Good Faith as pronounced in Section 98 of the
Constitution.
He made the notification when he appeared at the Harare
magistrates’ court where is facing criminal abuse of office charges.
Mphoko allegedly instructed junior officers at Avondale
Police Station in Harare to release former Zimbabwe National Road
Administration (Zinara) acting chief executive Moses Juma and former board
member Davison Norupiri, who was Zinara’s finance committee chairperson, from
the cells.
Juma had been jailed on abuse of office charges. “Take
notice that the accused person contends that a Constitutional matter has arisen
in these proceedings and by operation of Section 175 (4) of the Constitution
requests that the matter be referred to the Constitutional Court for
determination,” said Mphoko in his notification letter tendered to the court.
Mphoko, through his legal team led by Advocate Tawanda
Zhuwarara said five Constitutional questions, which need referral to the
ConCourt, have arisen in the matter.
He wants the ConCourt to also decide on:
“Whether Presidential Immunity as set out in Section 98 of
the Constitution extends to acts and or omissions by the Vice President (and
former Vice President) who alleges and intends to prove that such acts or
omissions actuated during the discharge of his or her duties accordance with
Section 99 of the said Constitution.
“Whether the defence of Good Faith as enunciated in section
98 (4) of the Constitution is available to a Vice President (and former Vice
President) who alleges and intends to prove that such acts and or omissions
were actuated during the discharge of their duties in accordance of section 99
of the said Constitution.
“Whether by operations of Section 99 and 107 of the
Constitution, the defence of “obedience to orders” is available to a Vice
President (and former Vice President) who alleges and intends to prove that
such acts and or omission were actuated during the discharge of their duties in
accordance with Section 99 of the said Constitution.
“Whether by operations of Section 110 (1) as read with
section 207(2) of the Constitution the President and or Vice President has the
immutable authority to direct, intervene, instruct and command the police
service and its constituent members.
“Corollary to the aforementioned questions is the question
whether the defence of claim of rights is available to a President of Vice
President who intervenes in the activities of the police service and its
constituent members.”
Mphoko also made the notification after Harare regional
magistrate Mr Hoseah Mujaya turned down his application to have his trial
transferred to a Bulawayo court.
The former Vice President claimed that he could no longer
afford to travel from Bulawayo to Harare for his court hearings.
Mphoko also argued that the witnesses can afford to travel
to Bulawayo through State assistance.
He also claimed the need to attend to his social, economic
and health needs would result in him making numerous applications for
postponements, disturbing the court systems in the process.
“There is also a corresponding Prosecutor General in
Bulawayo and there is no justification for the matter not to be dealt with in
Bulawayo,” said Mphoko’s lawyer Adv Zhuwarara in his application.
The State led by Mr Lovett Masuku said Mphoko should not
seek to extend his social and economic problems to the witnesses, as they are
employed officers with other duties to execute.
“A matter can be heard anywhere if the Prosecutor General
consents to the change of venue, but in this particular matter that has not
been done,” he said.
In his ruling magistrate Mr Mujaya concurred with the State
saying the PG has not consented to the change of venue and dismissed Mphoko’s
application.
He is expected to return to court on December 6 for trial
continuation. Herald
0 comments:
Post a Comment