A State witness in the case in which jailed Independent End Time Message leader Robert Martin Gumbura is accused of masterminding a foiled jailbreak at Chikurubi Maximum Security Prison last year, on Friday last week refused to testify arguing that his rights were being infringed.
For that reason, Davison Mutakaya wants the case referred to the Constitutional Court so that the rights issues can be dealt with.
Mutakaya told the court that he was making the application for referral on behalf of all the five State witnesses.
However, the witness did not disclose the rights which were being violated.
Mutakaya produced a written application that he intended to give to the court.
Prosecutor Mr Michael Reza then interjected, objecting to the application before Mutakaya could highlight how their rights were being infringed.
Mr Reza said Mutakaya should go through the State which was representing the witnesses.
Mr Reza said: “Your Worship, he is a State witness so if he is going to make an application, it should be made through his lawyer which is the State. The State has not read his written application so he cannot tender it to the court.”
In response, Gumbura’s lawyer, Mr Tapson Dzvetero, said Mutakaya had a right to make the application since he was a mere witness not a complainant.
He then advised the court that for the purpose of the application, he was now representing all the accused persons whom he said were concurring with Mutakaya’s application.
“The application should be made and accepted by the court for it to make a determination. He is not a complainant but merely a witness hence in terms of the law, he is not being represented by the State so he can make his own application to the court,” he said.
“However, if it is an application to have the matter referred to the Concourt, the accused persons’ position is to consent to the application together with their own issues, which they had previously requested the court to refer to the apex court.”
After hearing submissions from both parties, magistrate Mr Francis Mapfumo said before the application could be admitted in the record, there was need to establish whether a witness can make an application to the Constitutional Court citing infringements of fundamental rights.
The court then directed the State and the defence to research the legal position and file its submissions. Mr Mapfumo will make his ruling on June 24 on whether the application should be made by Mutakaya or through the State.
Gumbura is jointly charged with Blessing Chauke (25), Lucky Mhungu (38), Taurai Dodzo (47), Thomas Chacha (37), Thulani Chizema (32), Jacob Sibanda (28) and Elijah Vhumbunu (38) and an armed robber, Lucky Matambanadzo (39).
The nine are accused of masterminding a foiled jailbreak at Chikurubi Maximum Security Prison last year.
They are facing charges of attempting to escape from lawful custody, incitement in aggravating circumstances or alternatively conspiracy in aggravating circumstances for malicious damage to property.
It is alleged that during the morning of February 13, 2015 in B Hall, Gumbura allegedly incited other inmates to protest over the type of food they were being served.
With the intention to escape, Chauke, Matambanadzo, Mhungu, Dodzo, Chacha, Sibanda, Vhumbunu, Chizema and three other inmates who are now deceased, influenced inmates to reject the porridge they were served, which had no sugar, it is alleged.
Violence erupted, with prisoners vandalising property whose value was estimated at $450 000.