News / National
Kasukuwere petitions the High Court
10 Dec 2018 at 05:58hrs | Views
FORMER Local Government minister Saviour Kasukuwere has petitioned the High Court, accusing regional magistrate Hoseah Mujaya of being biased in the manner he has been handling his court case.
Kasukuwere is facing charges of abuse of office in the parcelling out of land when he was still a Cabinet minister.
His petition comes after Mujaya dismissed the former minister's application for exception to the four criminal charges he is facing.
Through his lawyers, Chinyama and Partners, the former minister said Mujaya failed to properly consider his application in which he was seeking to be absolved from any wrongdoing since the charges preferred against him did not disclose any offence.
He argued that his actions were a bona fide exercise of administrative power and authority.
"…The above shows clearly that what was being peddled as a criminal offence was a bona fide exercise of administrative power and authority. It could not amount to any criminal offence in any circumstances….the decision of the first respondent (Mujaya) can never be sustained," Kasukuwere said.
"It was so grossly outrageous in its defiance of logic to the extent that it is reviewable. Any reasonable magistrate who would have applied his mind to the facts would have noticed that in fact, no essential element of the offences had been established."
He added: "From a consideration of the ruling, it is apparent that the first respondent did not address the fact that the charges preferred against me did not disclose an offence in the absence of a statement of what duties I am alleged to have breached.
"Undoubtedly, the first respondent was biased and showed interest in the proceedings."
To buttress his application, Kasukuwere further said Mujaya spent a large portion of his ruling addressing the sufficiency or otherwise of the notice given to the State and mischaracterised the arguments made by his lawyer, Charles Chinyama.
"He (Mujaya) states that the State lined up witnesses whose evidence looks relevant to the matter on hand. I do not know how the magistrate looked at the evidence from witnesses who have not yet testified and before I have been asked to plead to the charges," Kasukuwere argued.
"His statement that the evidence looks relevant to the matter on hand amounts to an assessment of evidence which has not been led. It means the trial of the matter will be farcical… If he had applied his mind to the exception, he would have noticed that the exception does not raise triable issues. It simply questions the validity of the charges.
"…secondly, the first respondent confessed, during the proceedings that he was operating under pressure on at least two occasions. In doing so, the honourable magistrate breached his constitutional duties and the Judicial Code of Ethics; that being so, the proceedings were vitiated and must be set aside."
Kasukuwere also challenged the National Prosecuting Authority's decision to invite a Harare lawyer Zivanai Macharaga to prosecute the matter as a specially appointed prosecutor.
The matter is pending.
Kasukuwere is facing charges of abuse of office in the parcelling out of land when he was still a Cabinet minister.
His petition comes after Mujaya dismissed the former minister's application for exception to the four criminal charges he is facing.
Through his lawyers, Chinyama and Partners, the former minister said Mujaya failed to properly consider his application in which he was seeking to be absolved from any wrongdoing since the charges preferred against him did not disclose any offence.
He argued that his actions were a bona fide exercise of administrative power and authority.
"…The above shows clearly that what was being peddled as a criminal offence was a bona fide exercise of administrative power and authority. It could not amount to any criminal offence in any circumstances….the decision of the first respondent (Mujaya) can never be sustained," Kasukuwere said.
"It was so grossly outrageous in its defiance of logic to the extent that it is reviewable. Any reasonable magistrate who would have applied his mind to the facts would have noticed that in fact, no essential element of the offences had been established."
"Undoubtedly, the first respondent was biased and showed interest in the proceedings."
To buttress his application, Kasukuwere further said Mujaya spent a large portion of his ruling addressing the sufficiency or otherwise of the notice given to the State and mischaracterised the arguments made by his lawyer, Charles Chinyama.
"He (Mujaya) states that the State lined up witnesses whose evidence looks relevant to the matter on hand. I do not know how the magistrate looked at the evidence from witnesses who have not yet testified and before I have been asked to plead to the charges," Kasukuwere argued.
"His statement that the evidence looks relevant to the matter on hand amounts to an assessment of evidence which has not been led. It means the trial of the matter will be farcical… If he had applied his mind to the exception, he would have noticed that the exception does not raise triable issues. It simply questions the validity of the charges.
"…secondly, the first respondent confessed, during the proceedings that he was operating under pressure on at least two occasions. In doing so, the honourable magistrate breached his constitutional duties and the Judicial Code of Ethics; that being so, the proceedings were vitiated and must be set aside."
Kasukuwere also challenged the National Prosecuting Authority's decision to invite a Harare lawyer Zivanai Macharaga to prosecute the matter as a specially appointed prosecutor.
The matter is pending.
Source - newsday
