A HARARE magistrate has ruled that charges levelled against
former Vice-President Phelekezela Mphoko are vague and embarrassing.
Mphoko is facing criminal abuse of office charges, where he
allegedly unlawfully caused the release of former Zimbabwe National Road
Administration (Zinara) officials from police custody in 2016 when he was
Acting President.
The former VP, who is out on $1 000 bail following his
arrest by the Zimbabwe Anti-Corruption Commission, had applied for exception to
the charges at the Harare Magistrates Court.
In his ruling, magistrate Trynos Utahwashe said the right
to fair trail was absolute in terms of section 186(3)( e) of the Constitution.
"All essential allegations to be proved by the State
in order to sustain a guilty verdict must be contained in a charge sheet,"
Utahwashe said.
"The charge sheet must contain the relevant elements
of the crime that has been omitted and the manner in which the offence was
committed. The charge, therefore, should not be vague and too broad, but
specific. Only then can an accused person be required to answer to the
charge."
He concurred with Mphoko's lawyer, Zibusiso Ncube that the
State could not completely charge any public officer in terms of section 174 of
the Criminal Law (Codification and Reform) Act Chapter 9:23.
"I, therefore, would disagree that section 174 does
not contain any definition of conduct that is unlawful for a public
officer," he said.
The magistrate said the State made reference to section
106, which regulates the conduct of the VPs, ministers and deputy ministers in
government, adding that the State could not, therefore, deny that the conduct
alleged against Mphoko was defined in section 174 of the Criminal Law
(Codification and Reform) Act, alone and, therefore, could not stand.
"If the conduct complained against the accused by the
State is in subsection (2) of section 106 of the Constitution, the conduct must
be alleged in the charge sheet...," Utahwashe ruled.
"The present charge omits the essential allegations of
the conduct complained of by the State."
Mphoko faced an alternative charge of defeating or
obstructing the course of justice.
Utahwashe said the charge sheet has to essentially name
particular officers who were obstructed to do their work, and not generalise.
Charges were that on May 6, 2016, Zacc received a report of
allegations of fraud and criminal abuse of office against Zinara officials.
Investigations led to the arrest of Zinara acting chief executive Moses Juma
and non-executive director Davison Norupiri and Mphoko ordered their release.
Mphoko's defence submitted that their client had no
authority to issue orders to police officers as that was only reserved to the
President and thus whatever he said at the police station on the day, did not
constitute a lawful order to the officers.
Utahwashe ruled that whatever the accused said on the day
became an order due to his position, upholding the exception and dismissing
Mphoko's charges as vague and embarrassing. Newsday
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