Fraud suspect rejects student, police prosecutors

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THE use of police and trainée prosecutors by the National Prosecuting Authority (NPA) has been challenged in the Constitutional Court (Concurt) as unconstitutional.

THE use of police and trainée prosecutors by the National Prosecuting Authority (NPA) has been challenged in the Constitutional Court (Concurt) as unconstitutional.

SILAS NKALA STAFF REPORTER

Bruce Muparuri who was being tried on fraud charges by Gokwe magistrate Sithabile Zungula together with Mlindazwe Sithole, is now challenging the use of a University of Zimbabwe (UZ) student attached to NPA as a prosecutor.

Zungula ruled that the two be tried separately after the State asked for separation of the trials. However, Muparuri through his lawyers Phulu and Ncube Legal Practitioners filed an application for leave to appeal to the Concourt against his trial being prosecuted by a student who is not an employee of the NPA, but the magistrate turned down the application.

Muparuri’s lawyers then filed an application at the Concourt challenging the constitutionality of the trial. In a notice of application, his lawyers wrote: “Applicant had criminal charges put to him and was asked to defend himself against charges by a university student who is not a member of the NPA as constituted in terms of Section 258 of the Constitution Amendment (No, 20) 2013.

“The university student had not been engaged and/or employed by NPA board in terms of Section 259(10) of the Constitution Amendment (No, 20) 2013, and had never been part of the office that was known as the Attorney-General’s office under the Constitution that preceded the current Constitution.”

They submitted that the student was under the tutelage of a police prosecutor, a member of the security services who was engaged in undertakings at a civilian institution in times other than those of emergency in contravention of Section 208(4) of the Constitution.

“A police prosecutor under whose tutelage and instruction the prosecuting student was is under the direction(s) and control of his principal, the Commissioner-General of police, and is, as such indisposed to discharge his/her duties impartially, without fear, favour or bias as per the dictates of Section 260 of the Constitution of Zimbabwe,” the submissions reads.

“The activities of the prosecuting student and police prosecutor were in contravention of the onstitution as aforestated supra, and had the effect of violating applicant’s right to a fair trial as enshrined in Section 69 of the Constitution in that applicant was exposed to a trial by persons without authority/title, and in addition, persons whose independence is questionable to the extent of their being accountable to some other bodies or persons other than the second respondent.”

They submitted that all that amounted to threats to Muparuri’s right to lawful, reasonable, substantively and procedurally fair judicial administrative conduct.

In his founding affidavit Muparuri cited Zungula as first respondent while the prosecutor-general was cited as the second respondent. Muparuri said on January 9 2014, he and one Sithole appeared at the Gokwe Magistrates’ Court jointly charged of fraud.

“On the January 23, Sithole and I appeared before first respondent sitting at Gokwe Magistrates’ Court for routine remand.

“The State representative applied for separation of trial as the State intended charging Sithole with a new charge of criminal abuse of office.

“The trials were duly separated and charges were put to me by the university student who purported to represent the State. I pleaded not guilty,” Muparuri said. He said his lawyer made an application before Zungula seeking that the matter be referred to the Concourt in terms of Section 175 (4) of the Constitution Amendment (No, 20) 2013.

“The student was armed with what purported to be the prosecutor general’s authority to prosecute issued in terms of Section 76 (2) of the Constitution that preceded the current Constitution,” he added.

“The student had never before been part of the office which was known as the Attorney-General’s office in the old Constitution,” he said.

“In any case, the application in case is not frivolous and vexatious in that such application seeks to affirm my right to be dealt with by constitutionally authorised State officials.”