HARARE – The High Court halted former local government minister Saviour Kasukuwere’s trial on Wednesday after ruling that charges filed by prosecutors did not disclose an offence.
A magistrate’s refusal to grant Kasukuwere’s exception to the charges on that basis was “wrong in law, common sense and logic,” said Justice Tawanda Chitapi.
Kasukuwere was charged on two counts of criminal abuse of office relating to land allocations he allegedly made while he was minister, and another two counts relating to the appointment of Brainworks as advisors to the National Indigenisation and Economic Empowerment Board without going to tender.
The former minister made an application of exception to the charges at the Magistrate’s Court, but magistrate Hosea Mujaya threw out his application, and suggested Kasukuwere and his defence team were seeking to buy time.
In a devastating judgement released on Wednesday, Justice Chitapi said the magistrate had come across as “excitable” and made comments that were “unfortunate if not injudicious” while denying Kasukuwere a fair hearing.
Prosecutor Zivanai Macharaga had failed to pay due regard to Kasukuwere’s fair trial rights, the judge went on, by withholding information requested by Kasukuwere in preparation of his defence.
Granting Kasukuwere’s appeal against the dismissal of his exception application by the lower court, Justice Chitapi gave the following order: “a) The first respondent (Mujaya) ruling dismissing the applicant’s exception to the charges is hereby set aside.
“b) The failure to allege essential averments on the standards and procedures which the applicant ought to have followed and allegedly acted contrary to or inconsistently with his duty as well as a failure to allege the duties which the applicant abrogated vitiates the charge sheet and renders it a nullity. The charge sheet is accordingly quashed in respect of all the four counts.
“c) In the event that the Prosecutor General determines to prosecute the applicant on any amended charges, the fresh proceedings shall be commenced before a different magistrate other than the first respondent, Hosea Mujaya Esquire.”
He did not make an order on costs.
Justice Chitapi said it was not enough for prosecutors to arrest public officials and charge them with “acting contrary or inconsistent with their duties” without disclosing what those duties were.
“I must at once express my surprise at the apparent belligerent, hostile and argumentative posture which was adopted by second respondent as prosecutor,” the judge said of Macharaga, a member of a controversial prosecution unit set up by President Emmerson Mnangagwa.
“What counsel submitted in essence was that it was not necessary for the charge to disclose or allege procedures which should have been followed nor indeed the applicant’s duties in that regard. The attitude was more of a refusal to disclose material information or facts as would enable the applicant to plead an informed plea.
“… it just defies logic and legal reasoning for the prosecution to argue that the standard or the norm in regard to which an accused has deviated is not an essential element of a charge of criminal abuse of duty.”
The judge said it was “alarming” for the prosecutor to argue that the duty that Kasukuwere allegedly failed in performing or performed corruptly would be disclosed “in evidence” during the trial.
“A public officer is invariably charged to carry out a number of duties. It is only proper that where it is alleged that the public officer abused his duty, the precise duty which was abused should be included in the charge… There can be no criminal abuse in the air,” the judge said.
The judge found that the trial magistrate Mujaya appeared intent on stampeding Kasukuwere into a trial, ignoring his right to challenge the charges.
“With due respect to the first respondent the ruling (rejecting Kasukuwere’s exception to the charges) does not show that he applied his mind to the legal issues raised in the exception… The failure to do so was an irregularity and misdirection making the review of the proceedings a necessity,” said Justice Chitapi.
“… the particulars omitted from the charge and further requested for and denied would be reasonably required to inform the accused of the nature of the charge, but also because a refusal and denial of the same would violate fair trial standards.”
The judge said a criminal trial was not to be treated as a “game of hide and seek but a pursuit of justice.”
In his appeal filed by his lawyer Advocate Thembinkosi Magwaliba, Kasukuwere said Mujaya’s ruling was “outrageous in its defiance of logic that no reasonable magistrate applying his mind to the exception would have arrived at such a decision.”
Justice Chitapi said Mujaya had made comments that could be interpreted as taking the position that the filing of the exception by Kasukuwere was “an unwelcome intervention as he was on intent on the trial commencing.”
When Mujaya urged Kasukuwere and his lawyers to “run with the courts and not walk when the court was running,” Justice Chitapi said the magistrate was being “excitable”, a point conceded by his lawyer Sharon Fero.
The magistrate had further made comments, when rejecting Kasukuwere’s exception, to the effect that the prosecution had witnesses whose evidence was relevant, “yet no evidence had been placed before him by any witness.”
“The impartiality of the judicial officer is a constitutional issue and it forms one of the cornerstones of the justice delivery system… It is important that in the exercise of the judicial function, the judicial officer must remain guarded and refrain from inter alia passing comments and remarks which may be construed as a compromise to the judicial officer’s impartiality,” the judge said.
A warrant of arrest was issued for Kasukuwere after he stopped attending court in May, resulting in the loss of a US$200,000 holiday home in the eastern highlands that he had pledged as surety for his bail. Justice Chitapi, with the agreement of the lawyers, did not address the issue which is currently the subject of an appeal by Kasukuwere at the High Court.