Mphoko application for discharge review dismissed

FORMER Vice-President Phelekhezela Mphoko, who is being charged with criminal abuse of office, had his application for review against the magistrate's decision to dismiss his application for discharge at the close of the State case dismissed by the High Court.

Mphoko was arrested some months after the November 2017 coup that removed the late former President Robert Mugabe from power.

He was accused of storming a local police station demanded the release of two Zimbabwe National Road Administration officials Moses Juma and Davison Norupiri who had been detained by the police for corruption.

High Court judges Justices Benjamin Chikowero and Pisirayi Kwenda dismissed Mphoko's application and ordered that his case should proceed to trial.

Mphoko had applied for a review of magistrate Tranos Utawashe who refused to discharge him at the close of the State case.

He is facing criminal abuse of duty as a public officer and an alternative charge of defeating or obstructing the course of justice.

 Justices Chikowero and Kwenda in their ruling said there were no exceptional circumstances justifying the High Court interference with the unterminated proceedings pending before the lower court.

According to court papers, on July 13, 2016, Mphoko intentionally acted contrary to or inconsistent with his duties as a public officer for the purpose of showing favour to Juma and Norupiri by appearing at Avondale Police Station where he ordered the duo's release from police custody.

In his defence, Mphoko said in requesting the police to release Juma and Norupiri, he was executing an order by the late former President Robert Mugabe based on top State secrets, believing that harm would befall Juma and Norupiri if they spent the night in police cells.

Mphoko denied that he violated any law saying all he did was to execute an order given by the now late Mugabe by merely making a request for the release of the duo from police detention.

He also told the court that after the request, the police through their protocol released the duo.

 However, magistrate Utawashe in his decision to refuse to discharge Mphoko said legally a vice-president could not interfere with the police in their work.

The magistrate said presenting himself at Avondale Police Station to an inspector who is of the lowest commissioned rank in the force requesting the release of Juma, constituted engagement in conduct that is inconsistent with the duties of a vice-president.

The magistrate further ruled that Mphoko should explain his conduct in the defence case saying it was his own admission that he requested for Juma's release from custody.

Magistrate Utawashe had ruled that Mphoko was there intentionally and acted intentionally in the act or omission.

"Was the release done after the accused had intervened with his request for the release of Moses Juma at Avondale Police Station?  The answer is in the affirmative.  Both Zacc [Zimbabwe Anti-Corruption Commission] and the ZRP had detained the two suspects to appear in court on the following day. It was the accused's request that triggered the release of the two suspects," Utawashe said in his ruling.

However, the High Court judges said in invoking the law relating to interference by a superior court with the course of unterminated proceedings pending before an inferior court, there ought to exist rare or exceptional circumstances calling for the court's interference which circumstances could not wait until the trial is completed.

Mphoko had also listed his grounds for review against the lower court ruling saying magistrate Utawashe made the ruling without consulting the Constitution of Zimbabwe.