Lawyers representing Prophetic Healing and Deliverance Ministries leader Prophet Walter Magaya, who is facing ra-pe charges, yesterday notified a Harare court of intention to refer the matter to the Constitutional Court after the prosecution insisted on indicting Magaya for trial at the High Court, despite the complainant’s withdrawal of charges.
Led by Advocate Thabani Mpofu and instructed by Rubaya and Chatambudza legal practitioners, the lawyers raised constitutional issues that need to be determined by the apex court.
They are challenging a decision by Chief Law officer Mr Michael Mugabe who indicated to the court that the prosecution intends to indict Magaya for trial at the High Court.
Adv Mpofu said this submission was a tainted intention. He said the complainant confessed to the acting Prosecutor General Ray Goba that she was not raped, but that she had lied against Magaya.
Said Advocate Mpofu: “The State’s intention is not only tainted, it is not in accordance with section 65 and 66 of the Criminal Procedure and Evidence Act. It is also not in accordance with section 56 (1) and 69 (1) as well as the liberty guarantee as set out in the Constitution,” he said.
“We are aware of two things – that the State has been advised by the complainant in writing that she does not wish to pursue the matter. The second and most fundamental one is that the complainant has made a decision and advised the State that the complaint she made is false.
“For these reasons, and bearing in mind that there are two processes, the first being intention to indict and the second being the committer in terms of the accused, therefore before there is committal, we are entitled to challenge the intention to indict.”
The defence team then told the court that to buttress their argument, they wanted to call the complainant to the witness stand to confess before the court.
“We would like to call the complainant to the witness stand so that she can say before this court what she said to the PG in my presence and in the presence of the State counsel this morning,” he said.
The woman was seated in the gallery. However, the State objected to the application arguing that it was unprecedented for the defence to use a State witness.
“There is no law which allows accused persons to challenge indictment at the High Court. Issues that arise after that are triable. It has never happened in our jurisdiction and the court should not entertain the application,” he said.
Adv Mpofu on the other hand argued that an accused person could not be stopped from making any application.
“I am going to mount this application in a manner that I deem fit to protect my client’s rights. This is a preliminary application. There is no trial at this stage so there are no State witnesses to talk about since they are witnesses for justice. This morning in my presence, the complainant told the State the position she had adopted,” he said.
Magistrate Mr Vakayi Chikwekwe ruled that despite the wishes of the complainant, the State could proceed to trial since it is dominus litus in the matter.
“The court cannot stop the State to indict the accused person. It is the State, not the complainant, which has that constitutional mandate. Complainant is just a witness, hers is a mere persuasion which is not binding.”
Adv Mpofu submitted that the court had made a ruling on the indictment issue when he had not argued his objection.
“We wanted to oppose the application for indictment on the basis of the evidence that we were going to lead from the complainant,” he said.
Mr Chikwekwe however gave the defence the green light to call any witness of their choice when making their application for referral of the matter to the Concourt.
The lawyers will file their written submissions for the application for referral tomorrow and the State will file their response on December 12.
The matter will be back in court on December 19 when both parties are expected to make oral submissions to support their written ones.