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Daniel Nemukuyu, Harare Bureau
HIGHER and Tertiary Education, Science and Technology Development Ministerm Professor Jonathan Moyo, yesterday lost his constitutional challenge against arrest and will now appear before a magistrate to answer to charges reportedly misallocating more than $400 000 from the Zimbabwe Manpower Development Fund (Zimdef) to non-core issues.

Prof Moyo was “arrested” by the Zimbabwe Anti-Corruption Commission (ZACC) on charges of abusing the funds. He rushed to the Constitutional Court arguing his rights had been violated as ZACC had no arresting powers.

He argued that a police officer, Sergeant Munyaradzi Chacha, who was on secondment to the ZACC, had no powers to arrest him by virtue of the secondment.

The Constitutional Court ruled that the minister deserved no preferential treatment and that he should, like anyone else, follow the normal criminal procedure of arrest and appear before a magistrate.

It was found that he had jumped the gun by approaching the Apex Court instead of challenging his arrest at the lower court.

The Apex Court also found that secondment of a police officer to the ZACC did not strip him or her of arresting powers.

Chief Justice Luke Malaba said a magistrate had the leeway to hear evidence from witnesses to clarify any dispute of facts, unlike a Constitutional Court that deals with papers filed before it.

“The Constitutional Court holds that it would not be within its competence to determine the question of the lawfulness of the applicant’s arrest.

“The law governing resolution of the matter required applicant, like all arrested persons, to appear before a magistrate to challenge the lawfulness of his arrest,” ruled Chief Justice Malaba.

The Chief Justice held that Prof Moyo’s case did not raise sound constitutional issues, hence it failed to meet the test for constitutional matters to be determined by the Apex Court.

“No constitutional matter has arisen in this case. The Constitutional Court has no jurisdiction to determine a matter which is not constitutional,” he said.

Chief Justice Malaba found that the first respondent, Sergeant Chacha, remained a police officer despite the fact that he was seconded to ZACC.

“A police officer does not cease to hold or exercise his office by reason of secondment. From a reading of Section 3 of the Regulations, secondment is when a member of the regular force is transferred to employment outside the regular force in the service of the State upon such terms and conditions as may be fixed by the Commissioner-General,” said CJ Malaba.

“Such an officer continues to have powers vested in a member of the police force, including the power to arrest,” he said.

In terms of Section 24 of the Police Act, one can only cease to be a police officer upon termination of his or her contract.

The court also found that Prof Moyo wasted time by approaching the wrong court.

“The applicant was arrested and the intention was to bring him before a magistrate for initial remand. It is at these proceedings that the applicant ought to have challenged the lawfulness of his arrest,” said Chief Justice Malaba.

“The Magistrate’s Court would have had competence to conduct the factual inquiry into whether or not the first respondent (Sgt Chacha) formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement,” the court ruled.

Prof Moyo’s charges include criminal abuse of office, fraud, corrupt concealment from principal of personal interests in a transaction and obstruction of the course of justice.

He, his deputy Dr Godfrey Gandawa and Zimdef finance director Nicholas Mapute, are accused of abusing nearly $500 000 belonging to Zimdef.

They were arrested by the ZACC.

Dr Gandawa and Mapute have since been placed on remand at the Harare Magistrates’ Courts.

Before the trio’s court appearance date, the minister instructed his lawyer Mr Terrence Hussein to file an urgent interdict at the Constitutional Court.

In his application, he questioned the constitutionality of his arrest by ZACC and the role played by the police.

He argued that ZACC did not have the power to arrest and detain suspects in terms of the Constitution.

He also argued that the Prosecutor-General did not, in terms of the Constitution, have the power to order the police to arrest an individual.

He sought to stop his appearance in court, describing it as an illegality.

Prosecutor-General Advocate Ray Goba argued that a docket that reached his office showed that there was an “overwhelmingly reasonable suspicion” that the politician and his accomplices committed fraud, theft, money laundering and criminal abuse of office.

To that end, Adv Goba urged the court to dismiss with costs the constitutional challenge by Minister Moyo and instead direct that he immediately surrender himself to the investigators and appear before a magistrate to answer to the charges.

Adv Goba and his team of chief law officers also picked from the docket that Minister Moyo authorised various transactions in which Zimdef lost close to $500 000.

The PG said Minister Moyo did not deserve to be treated differently from other suspects.