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Tendai Rupapa, Harare Bureau
Prophetic Healing and Deliverance Ministries leader, Walter Magaya, has accused the Acting Prosecutor General of harassment after his office indicated it wanted the prophet indicted at the High Court for allegedly raping a congregant despite the complainant having withdrawn charges.

In a letter dated December 1, addressed to Acting PG Ray Goba accompanied by an affidavit, the woman cleared Magaya of rape.

She claims she fabricated charges against Magaya. The woman said she did not want the matter pursued.

However, on Wednesday last week, Chief Law Officer Mr Michael Mugabe told the magistrate’s court that prosecution intended to indict Magaya for trial at the High Court.

Advocate Thabani Mpofu, who is representing Magaya with instructions from Rubaya and Chatambudza Legal Practitioners, then challenged the State’s intention to indict.

His objection was overruled by magistrate Mr Vakayi Chikwekwe, who gave the State the greenlight to indict Magaya.

This prompted the defence team to give notice for an application for referral of the matter to the Constitutional Court.

They raised constitutional issues which they said could only be dealt with by the apex court.

In his affidavit in support of the written application filed yesterday, Magaya claimed he was a victim of frabricated rape charges.

He said the State’s intention to proceed with the matter was abuse of judicial process.

“In view of the foregoing, I submit that the following constitutional questions arise; whether in the light of the complainant’s withdrawal of her complaint and her indication that the substance of the complaint is false, the decision of the National Prosecuting Authority and or the Acting Prosecutor General, to bring me to trial amounts to harassment, is in breach of the protection of the law guarantee as encapsulated in section 56(1) of the Constitution of Zimbabwe and is therefore an abuse of court process and is void,” he said.

“. . . Is in breach of section 70(1)(b) of the Constitution in that I am to be presented with a charge which is contradicted by the only meaningful State witness. The witness says the allegations are false but I am miraculously required to respond to what is effectively nonsense.

“Results in the unlawful deprivation of my liberty in breach of section 49(1)(b) in that the deprivation of my liberty is arbitrary under the circumstances of the matter,” he said

“I submit that the State’s intentions are tainted. The State is in pursuit of nothing legal. It seeks to involve the criminal justice system in moral defilement. This in my submission would compromise the integrity of the criminal justice delivery system and would dishonour the administration of justice. The upshot of all this is that the State wants to abuse process at my expense and wishes to do so for reasons that have nothing to do with the law.”

Magaya said a charge was founded upon a complaint and without a complaint, a charge was invalid.

“Notwithstanding the clarity with which the complainant sets out her position, the State still decided that it would not give any heed to her. The confusion afflicting the State is common but simple. It is a complainant who comes up with a complaint. It is the State that comes up with a charge.

The charge is, however, founded upon the complaint. Without the complaint a charge is invalid. Whilst the State has the prerogative to charge and cannot be directed by anyone in doing so, it does not have the right to proceed when it has lost both the complaint and its sole witness. The exercise aborts. Any decision to proceed is not on the authority of the law though it may be presented in the name of the law,” he said.

Magaya wants proceedings stayed pending the determination of his application on the constitutional issues he raised.

“I submit that the issues that I raised are serious and warrant the grant of relief upon their consideration. The relief they entitle me is an immediate cessation of this unconstitutional process. The raising of the issues is consequently not frivolous and vexatious. Proceeding would undermine the Constitutional Court process and render it of no moment,” he submitted.

In his application, Magaya wants the Constitutional Court to determine whether the State’s decision to continue with his prosecution under the circumstances is lawful, constitutional and valid.

The State is expected to file its response on December 12.

Magaya returns to court on December 19.