Higher and Tertiary Education, Science and Technology Development Minister, Professor Jonathan Moyo’s Constitutional Court challenge against the validity of his arrest by the Zimbabwe Anti Corruption Commission (ZACC) has crumbled after he was asked why he snubbed the magistrates court.
The challenge emanates from Professor Moyo’s alleged theft of ZIMDEF funds.
The lawyers for the applicant Professor Moyo, respondents Sergeant Chacha, ZACC, the ZRP Commissioner General and the Prosecutor General argued their case before the Constitutional Court bench.
Chief Justice Luke Malaba quizzed Professor Moyo’s lawyers why he avoided going to the magistrates court to challenge his alleged unlawful arrest by a police officer seconded to ZACC on allegations of defrauding ZIMDEF.
The court expressed grave concern at the conduct by the applicant of side stepping the lower court which has inherent jurisdiction on dealing with the legality of arrests.
Advocate Lewis Uriri and Advocate Edley Mubaiwa under the instructions of Mr Terrence Hussein represented Professor Moyo in his challenge against ZACC’s Sergeant Chacha, the Commissioner General of Police and the Prosecutor General.
Advocate Uriri had passionately argued that Professor Moyo’s fundamental rights in terms of sections 49, 50 and 70 of the constitution were violated when he was arrested by Sergeant Chacha hence his resort to approach the ConCourt.
He said any person whose liberty is at stake even in the absence of the physical placement in custody can approach the Constitutional Court for relief, adding that ZACC has no powers of arrest and that the secondment of Sergeant Chacha to ZACC automatically froze his powers of arrest as a police officer.
Chief Justice Malaba however dismissed Advocate Uriri’s pleas, saying the magistrates court has the power to decide the lawfulness or lack thereof of an arrest in terms of Section 41 of the Criminal Procedure and Evidence Act Chapter 9:23.
He added that the law is very clear that a person arrested should promptly be taken to court and appear before a magistrate and that the arguments could have well been resolved speedily as opposed to the present case.
Advocate Thembinkosi Magwaliba also shredded the arguments by Advocate Uriri, saying all matters raised by Professor Moyo are statutory and not constitutional and the self-contained mechanisms in the Criminal Procedure and Evidence Act would have effectively dealt with his case.
He accused Professor Moyo of side stepping the magistrates court after his lawyers had made an undertaking to avail him and jumped to the Constitutional Court, leaving relief available at the lower court.