Magaya Seeks ConCourt Rescue in Rape Trial Battle

A Regional court will on May 29 deliver a ruling in a matter in which Prophetic Healing and Deliverance leader Walter Magaya who is accused of rape is seeking to have the matter referred to the Constitutional Court, allegaing that the State’s intentions are “tainted” and in pursuit of “nothing” legal.

Magaya’s lawyers, Admire Rubaya and Everson Chatambudza, are challenging his trial on the grounds that the prosecution is unfair.

They argue the case should not move forward because the state’s own officials—the investigating officer and Chief Director Tendayi Shonhayi—admitted that the Irish-based complainant’s original statement had to be changed because it failed to explain how the rape occurred.

Furthermore, the defense highlights that one of the alleged victims has formally withdrawn their complaint, and there is no medical evidence proving rape.

They argue that the State is seeking to involve the criminal justice system in moral “defilement” adding that this would compromise the integrity of the criminal justice delivery system and would dishonour the administration of justice.

Magaya further argues that a charge of rape centres on three pillars that is the complainant, first person to be told and a medical affidavit such that proceeding to trial in the absence of these three pillars makes the whole process unconstitutional.

On Friday, Rubaya argued that the state’s case has collapsed following a witness withdrawal, leaving insufficient evidence to proceed under prosecutorial guidelines.

He maintained that continuing the trial without medical affidavits would be futile, an abuse of the court process, and a violation of his client’s rights.

“A complaint of rape originates from a complainant, while a charge originates from the State. Yet a charge cannot exist in a vacuum—it is founded upon the complaint. Without the complaint, the charge collapses. While the State enjoys the prerogative to prosecute, it cannot lawfully proceed when it has lost both the complaint and its sole witness. To do so is not an exercise of lawful authority but a hollow performance masquerading in the name of the law,” Rubaya said.

“The upshot of all this is that the state wants to abuse the process at Magaya’s expense and wishes to do so for reasons that have nothing to do with the law. It is submitted with respect that this process has become unconstitutional.”

Magaya believes the state is pursuing the case more aggressively than the alleged victim, thereby violating his constitutional right to a fair trial.

“Why should the prosecution drag a withdrawing complainant kicking and screaming to the criminal court for her to testify against the Accused.

“Whose case then is going to be prosecuted if the complaint has been withdrawn considering the nature of the offence which is alleged to be a sexual attack on the very same complainant and not any other individual or any other woman for that matter. This is where one would ask why the Prosecution is crying more than the bereaved?

“The alleged victim of the alleged offence, which is personal in nature,has said NO! to the further prosecution of the Applicant. Whose bidding is the prosecution doing? Whose justice when the complainant has withdrawn from the case?”

They further contended that the prosecution is suppressing medical evidence and failing to disclose the results of a DNA test, which they claim was “forcibly” extracted from Magaya during his detention.

“Applicant was then taken from Harare Remand Prison to Parirenyatwa Hospital against his will and in the absence of his legal practitioners, where his DNA was extracted.

“The Applicant has not been served with the results of that DNA test, nor has he been informed of what has happened to the samples. The Applicant has the right to be given adequate facilities to prepare a defence, which includes the right to challenge or adduce evidence regarding this DNA.

“The State’s failure to disclose these results, which were obtained through an order of court only to subsequently abandon the use of such evidence without any justification, suggests that the results may be negative and do not support the State’s case. This conduct and decision violate Applicant absolute right to a fair trial,” the lawyers argued.

Additionally, Magaya has raised objections regarding the conduct of law enforcement and the prosecution, submitting that their behavior necessitates the intervention of the apex court.

“Chief Director Tendayi Shonhayi has denied the existence of both the withdrawal affidavit and the letter from a complainant in one of the charges against Applicant. Ms. Shonhayi went further to reveal that the State was in the process of amending the statement of another complainant, who resides in Ireland.

“These admitted revelations, made openly on record, by a senior official in the NPA smack of prosecutorial impropriety, where the prosecutors conflate their prosecuting functions with investigations, resulting in them clearly usurping the role of the police services to conduct investigations.

“In this case, the public prosecutors admitted to amending a witness statement—clearly dissatisfied with the original version because it did not advance the narrative they intended to choreograph against Applicant,” the lawyers said.

The defense also accused the police and prosecution of working together to alter the complainant’s statement and violate Magaya’s rights.

“Chifamba revealed under pressure from cross examination that the real original statement did not reveal how the alleged rape offence had been committed. That is a pregnant statement which reveals the reason for interference from the State prosecutors as confirmed by Shonhayi on oath.

“This conduct is not only unlawful but prejudicial. It reveals bias and favour towards the complainant, while subjecting Applicant to a case that has been panel-beaten into shape through prosecutorial interference,” the lawyers argued.

Responding to Magaya’s claims, Chief Director Clemence Chimbari, with the assistance of Shonhayi argued that the application is “frivolous and vexatious” and aimed at delaying trial adding the withdrawal of cases lies with the Prosecutor General.

They submitted that the Prosecutor General functions independently and retains absolute discretion regarding prosecution.

Furthermore, they contended that the objections raised by Magaya are matters to be cured at trial, serving as “fertile” ground for subsequent cross-examination.