By Crime and Court Reporter
Former Tourism Minister Prisca Mupfumira has approached the High Court seeking an order to set aside the decision by Chief Magistrate Munamato Mutevedzi not to separate trials between her and Ngoni Masoka be declared null and void and of no force or effect.
Mupfumira is arguing that proceeding with the joint trial would render the trial unfair and also want her trial to be heard under a different officer other than Mutevedzi.
Former Public Service Commission permanent secretary Ngoni Masoka and Mupfumira are jointly charged on two counts of criminal abuse of office and concealing a transaction from a principal.
“The first respondent’s decision aforesaid annihilates the Applicant’s Constitutional right to adduce and challenge evidence the more so given that the 2nd Respondent’s defence would require Applicant to lead evidence from the 2nd Respondent yet Applicant cannot at law compel the 2nd Respondent to testify in her defence during a joint trial,” reads the court papers
“This is an infraction of Applicant’s right to adduce and challenge evidence as, set out in section 70(1)(h) of the Constitution.
“The First Respondent failed to judiciously exercise his discretion in refusing separation of applicant’s trial from that of second respondent.
“In the result Applicant is likely to suffer irreparable prejudice which will lead to a miscarriage of justice in that Applicant will now be required to defend herself without the possibility of compelling her star witness to testify in her defence.”
“First Respondent’s decision to ex mero motu amend the substance of his reasons for his decision to refuse separation of applicant’s trial from that of her co-accused is grossly irregular and done outside first respondents jurisdiction as well as not sanctioned in terms of section 201(2) of Criminal procedure and Evidence Act [Chapter 9:07] under which it was purportedly made.”
In his ruling Mutevedzi said the decision by the prosecution to jointly charge accused persons in one trial in borne out of the law.
“Section 158 of the Code allows prosecution to proceed in one trial where two or more persons are implicated in the same offence,” he said.
“As such accomplices can be tried with the principal offender and accessories after the fact can also be tried with principal offender.”
Applying for the separation of trial Mupfumira is said Ngoni Masoka is her principal witness and if the trials are not separated, she will not have the benefit of accused testifying on her behalf.
Her further reasoning is that as an accused, Masoka cannot at law be compelled to give evidence on her behalf yet he will be competent and compellable witness if the two of them are not jointly charged.
Mupfumira went on to say that her right to fair trial will be severely curtailed by that.
Put different Mupfumira is arguing that it is in the interest of justice that her trial be separated from Masoka.
The former minister was arrested in July 2019 by the Zimbabwe Anti-Corruption Commission (ZACC), on allegations of swindling National Security Authority (NSSA) $95 million during her time as Public Service minister.
She was granted $5000 bail by the high court judge Ammy Tsanga after spending solid two months in remand prison.
Un her defence outline Friday Mupfumira said the allegations originated during the Zanu PF factional fighting in 2017 and were designed to get her out of political life as she was seen as a strong supporter of then Vice President Mnangagwa.
Mupfumira, is being represented by lawyer Admire Rubaya.
The former minister said during that period, she became a target for persecution that resulted in her successor in the Ministry of Public Service, Labour and Social Welfare, Patrick Zhuwao, raising the allegations against her and manipulating facts.
She told the court that the allegations were raised soon after attending the launch of the Muzenya Suburb Housing Scheme in Gweru, which was attended by then Vice President Mnangagwa.
Mupfumira is jointly charged with Barnabas Matongera who was the director of contributions, collections and compliances at NSSA.
“These charges are malicious, frivolous and vexatious only meant to tarnish her image and deem her political career which was at its twilight.
“The investigation of the matter was compromised against her whilst shielding those that ought to have provided answers to whatever questions the State has concerning the NSSA and Drawcard Enterprises (Pvt) Limited off-take agreement,” her defence team said when denying the charges.
“The complaint was allegedly made when it was not fashionable to support the current Head of State during the last days of the Old Dispensation particularly during the interface rallies where there was a choreographed and systematic onslaught of the current Head of State.
Mupfumira said she became a target after she attended the official launch of the Muzenya Suburb Housing Scheme in Gweru with the current Head of State, who was the Vice President then, on or about 7 September 2017 at the invitation of the NSSA board of directors.
“The First Accused (Mupfumira) asserts that the housing project was commissioned by the current Head of State in the presence of Dr Joram Gumbo, other Government ministers and the Zanu PF Midlands Province Leadership.
“This attendance did not mean she had been involved in the processes leading to the alleged agreement between NSSA and Drawcard Enterprises (Pvt) Limited,” she said.
Mupfumira said she was not connected to the directors at Drawcard Enterprises (Pvt) Limited and was never involved in the running of NSSA. She denied giving specific instructions to the NSSA management on the investments projects and noted that while the charge uses the term ‘NSSA Management’, it does not specify who exactly was allegedly given the alleged instructions.
Mupfumira also denied giving Matongera instructions to enter into any off-take housing projects contracts on behalf of NSSA without board approval.
The matter is expected to continue on May 26 with Chihota testifying.