By Judith Nyuke
Prophetic Healing and Deliverance leader Walter Magaya has filed an application for review with the High Court arguing that the magistrate’s court’s failure to release him upon initial appearance is a gross violation of the law that he claims is regressing the country to the colonial era.
When Magaya initially appeared in court on November 3, his lawyers—Admire Rubaya, Everson Chatambudza and Advocate Sylvester Hashiti—sought his immediate release, arguing that his detention was excessive and that Section 50(3) of the constitution mandated release on that basis.
Represented by Clemence Chimbari, Tendai Shonhayi, Kudzai Chigwedere, and Chipo Muronda, the State admitted Magaya’s over-detention but maintained he should not be released and should instead pursue civil remedies.
Magistrate Marewanazvo Gofa ultimately agreed with the State, dismissing Magaya’s challenge and instructing him to seek civil remedies.
Following his release this Thursday, Magaya, represented by Rubaya and Chatambudza, approached the High Court with an application to review Gofa’s decision, asserting that such a ruling cannot be upheld in a democratic society.
In his application, he has cited magistrate Gofa innher official capacity as the first respondent and the Prosecutor General as the second respondent.
“By transforming this clear Constitutional command into a mere precursor to civil litigation, the 1st Respondent (Magistrate Gofa) effectively rewrote the people’s will as expressed in the Constitution from the bench, creating a dangerous precedent that would allow state actors to brazenly violate the fundamental rights with virtual impunity.
“The imaginary law-making power and subsequent decision of the 1st Respondent takes the criminal justice system back to the Lancaster House constitution, which was discarded by Zimbabweans upon the advent of the new Constitution in 2013,” read part of the application.
Magaya argued that the court’s flawed decision must be challenged to prevent a floodgate of future injustices.
He stated that his legal action is intended to correct the excesses committed by the State.
“Notwithstanding the detailed and elaborate submissions advanced by my legal practitioners, the 1st Respondent nevertheless doubled down, ultimately siding with the 2nd Respondent and ruled that I could not be released immediately and unconditionally.
“In effect, the State effectively submitted that it was permissible to detain any person arrested and held in custody for as long as it deems fit, well beyond the constitutionally prescribed 48-hour limit, without affording that person any meaningful recourse before a criminal court.
“Such a submission should send a chilling signal to every Zimbabwean, for it represents a dangerous regression to the repealed Lancaster House Constitution, under which accused persons could languish in detention for extended periods with no remedy save for lodging futile complaints,” the application reads.
According to Magaya, the State’s actions may garner some support, but they set a damaging precedent that has no legitimate place within a constitutional democracy.
“This posture by the State — abusing, misusing, and overusing its arrest and detention powers – may appear palatable to some who, for personal reasons, harbour animosity towards me and therefore condone the conduct of law enforcement agents. Yet in a constitutional democracy, such abuse cannot be normalized and must be nipped in the bud.
“If unchecked, this arbitrary erosion of liberty will metastasise to an extent that would embolden law enforcement agents to regard themselves as a law unto their own,” he said.
Magaya argued that the court failed to correctly interpret the relevant constitutional provision.
“With respect, the 1st Respondent’s ruling exhibits a fundamental and startling misunderstanding of
Constitutional jurisprudence that rises to the level of gross irregularity.
“Her finding that the remedy for a breach of section 50(3) of the Constitution lies in civil damages rather than the immediate and unconditional release of the over-detained person which is the solution provided by the same provision to over-detention, constitutes a complete and brazen subversion of the Constitution of the Republic of Zimbabwe. ‘Must’ means must.
“The phrase “must be released immediately” is not merely directory but peremptory, creating a constitutional obligation that admits of no judicial discretion. That provision does not only create an obligation to release an over-detained person on the law enforcement agents, but it also applies to whichever court the an over-detained person would have been taken to for purposes of appearance intended to extend their detention,” Magaya said.
