By Judith Nyuke
The Harare Magistrate’s Court trial of Prophetic Healing and Deliverance leader Walter Magaya who faces multiple counts of rape has been postponed to July 31 pending a review application filed at the High Court.
In the application, Magaya contests the State’s decision to proceed with the six counts of rape, citing multiple violations of his constitutional rights.
During his court appearance this morning, Regional Magistrate Mapfumo dismissed Magaya’s application for a Constitutional Court referral and postponed the trial to July 31 to await the High Court review.
Magaya, who is represented by Admire Rubaya and Everson Chatambudza alleges that the prosecution acted improperly while handling a witness currently based in Ireland.
Magaya claims the prosecution violated his right to a fair trial by allegedly altering a witness statement and compromising their professional neutrality just to force a conviction.
“The decision to prosecute the applicant on the counts of the Ireland witness is founded on evidence that has been improperly shaped by the prosecutors themselves. The original statement that did not disclose the offence has been suppressed. The amendments have not been disclosed.
“The prosecutors have descended into the arena, abandoning their constitutional duty of impartiality. The applicant’s absolute right to a fair trial has been violated.
“They “amended” the statement to achieve a desired result. They were no longer ministers of justice; they became partisans in the pursuit of a conviction. This is grossly irregular. It vitiates the entire prosecution,” the lawyers argued.
Magaya also argues that the State is violating his right to a fair trial by prosecuting him without DNA evidence claiming prosecutors are deliberately suppressing tests that would damage their own case.
“What is mind boggling is that the State has failed to disclose the results of the DNA analysis to the applicant and is prepared to proceed to trial without serving the Applicant with the scientific evidence that the State went to great lengths to obtain.
“The Applicant is being dragged to trial in the absence of evidence which was obtained from him and through his participation in compliance with an order of court. The suppression of DNA results is a flagrant violation of the applicant’s right to a fair trial.
“The only reasonable inference is that the results are unfavourable to the prosecution and are being suppressed. The decision to prosecute while withholding this evidence violates the applicant’s absolute right to a fair trial. By withholding the results, the respondents have disabled the applicant from making informed decisions about his defence. This is an incurable irregularity,” the lawyers argued.
Magaya contends that continuing to prosecute him after two complainants withdrew their charges is oppressive and legally baseless.
“A decision to prosecute that has no evidential foundation, that is pursued in defiance of the wishes of the sole complainant, and that can only result in a charade of a trial, is not an exercise of lawful discretion. It is an abuse of process.
“The offence of rape is personal. The evidence of the complainant is indispensable. Without her testimony, there is no case.The evidence from the receiver of complaint is of no consequence in the absence of evidence from the complainant, more so in this case where there is no medical evidence.
“To prosecute a person on charges of rape when the complainants have withdrawn their complaints and do not wish to testify is, with respect, not a rational exercise of prosecutorial discretion. It is an act of oppression. The Respondents cannot seek to commence prosecution with impeachment of the complainant. If the Complainant is declared hostile in a rape matter, then what`s next? Why prosecute in the circumstances?”
