Kamambo and colleagues seek ConCourt referral in bid to block trial

Former ZIFA president Felton Kamambo and four colleagues who are part of the football mother body's ousted executive have accused prosecutors of violating their rights through insisting on trial in a case they allegedly misrepresented their legitimacy as a board.

This comes after the Sports and Recreation Commission withdrew from the case with the state continuing to prosecute them in the absence of a complainant.

The five are Kamambo, Philemon Machana, Brighton Malandule, Stanley Chapeta and Joseph Mamutse.

They argue that the withdrawal removed the basis for their trial.

The former football administrators now seek referral of their case to the Constitutional Court.

Their lawyer, Admire Rubaya on Wednesday led evidence from Machana who told Harare magistrate Taurai Manuwere that they were being persecuted.

Kamambo and colleagues want the court to consider their referral application as an unopposed one after prosecutors failed to defend Machana's testimony.

"In this matter, there has been a withdrawal not of the charge, as wrongly assumed, but of the complaint and of the complainant in the matter," Machana said.

"The withdrawal has been made on the basis that the complaint is substantively false, given the acceptance by FIFA that the Applicants were the legitimate football leaders at the time this offence is alleged to have been committed.

"That withdrawal has come to the attention of the prosecutor and the court before the trial is finalised. Nonetheless, the prosecutor wants to proceed."

Kamambo and friends insist it is absolutely impossible for the fraud trial to be held in the absence of a complainant adding that no fraud was committed in the first place.

"The court is now aware of the position taken by the SRC and FIFA.

"There is no basis at law for a trial to be conducted under the circumstances. What does the prosecutor want to try?

"Second, the insistence by the prosecutor on proceeding is an attempt by him to suborn perjury. It is a criminal act on his part. The prosecutor cannot want to proceed to trial unless he wants to force the complainant to lie on oath.

"Why does the prosecutor want to proceed unless he wants the complainant to turn around and lie?

"This is the framework in which the constitutional issues have been raised," said Rubaya.

The lawyer said the withdrawal by SRC made it clear that the complaint was false and proceeding with prosecution would be a violation of their rights which should be determined by the Constitutional Court.