Tinaapi Nyawo
was convicted of fraud in a judgment read by Regional magistrate Feresy
Chakanyuka on a day Tsikwa was taking oath of Judge’s office and he was
sentenced to an effective three years.
Nyawo through
his lawyer Admire Rubaya has approached the High Court arguing that the
proceedings which continued on July 2 and finished on July 7 days after Justice
Tsikwa had been appointed judge by President Emmerson Mnangagwa and published
in the government gazette should be set aside.
They have cited
magistrate Chakanyuka as the first respondent and the Prosecutor General as the
second respondent in the review application. They argue that Magistrate
Chakanyuka’s decision to proceed with the case, pronouncing judgment and
sentence despite an objection that it was unlawful for her to proceed should be
set aside.
The State
responded to the objection saying Tsikwa became a judge after taking oath of
office and not mere publication of his name in the gazette. They argue that
Tsikwa’s appointment by the President meant he was now a judge and ceased to be
a magistrate which meant the matter had to be stopped and restarted before a
new judicial officer not to be continued by magistrate Chakanyuka.
It is their
argument that a person cannot be appointed as a judicial officer of more than
one court except as otherwise provided in the Constitution. “The previous judicial officer had become
functus officio, and proceedings were now a nullity consequent to the trial
being abortive. The decisions of the 1st Respondent (Chakanyuka) cannot
withstand scrutiny in terms of the law. They are invalid and grossly irregular
as to implicate this Honourable Court’s powers of review.
“The grossness
of the errors of the 1st Respondent, who was being cheered on by the 2nd
Respondent, is self-evident as she exercised non-existent powers and/or
jurisdiction which is undoubtedly and brazenly invalid,” the application reads.
In the
application, Rubaya argues that the proceedings became null and void and should
have been stopped when Mr Tsikwa was appointed judge.
“The
appointment as a Judge automatically terminated the appointment as a Magistrate
by operation of law. He could not be a judge and a magistrate at the same time
in the same body.
“Honourable
Justice Tsikwa was no longer an employee of the Judicial Service Commission but
was now a Constitutional Official as from 2 July 2025,”
In his papers
Nyawo said Magistrate Chakanyuka did not take heed to the objection which she
proceeded to dismiss, and sentenced him to three years imprisonment.
He said
magistrate Chakanyuka “for all intents and purposes, had no jurisdiction and
had taken over proceedings which were a nullity as from the 2nd of July 2025.”
“If the
proceedings of the 2nd and 3rd of July 2025 are a nullity, then those of the
4th of July 2025, which include the verdict of guilty, are also a nullity.
“The
proceedings of the 7th of July 2025 suffer from the same fate; thus, my
sentencing should be set aside as it is already a nullity.
“I am currently
languishing in prison on the basis of that sentence passed by the 1st
Respondent (Magistrate Chakanyuka) thus, it should be set aside, otherwise I
will be in prison for the next three (3) years,” his application reads. Nyawo
added that his lawyers had advised him that matter which opened before Mr
Tsikwa had become abortive upon his ascension to higher office of the Labour
Court Judge on July 2.
He argues the
State also took part in short-circuiting justice “pursuing me in the face of
clear constitutional provisions prohibiting my further prosecution before
Honourable Justice Tsikwa.” Herald
0 comments:
Post a Comment