By Tendai Rupapa
Former Information Communication Technology and Cyber Security Minister Supa Mandiwanzira, who is facing criminal abuse of office charges, yesterday made an application challenging his prosecution on charges which he claimed were not defined in the statute books.
He is now seeking to have the Constitutional Court to define the charges under Section 174 (1) (a) (b) of the Criminal Procedure and Evidence Act in line with the country’s Constitution.
Through his lawyers Advocates Thembinkosi Magwaliba and Brian Hungwe, Mandiwanzira said the Act under which he was being charged was unconstitutional, null and void. Mandiwanzira unsuccessfully applied for exception recently and the matter was remanded to yesterday for trial. When he appeared before magistrate Mr Elijah Makomo, Mandiwanzira made an application for referral of the matter to the Constitutional Court.
Mr Magwaliba said: “The section does not define what the duties of an officer are, as a result, public officers will operate in fear of transgressing that law because the decision as to what is abuse of duty, is entirely left to the police officers.
“Mandiwanzira couldn’t have conducted himself in a manner contrary to his duties as a public officer because the duties are not defined in the Act and this endows police officers to determine what the parameters of the duties are.
“The Act which creates a criminal offence must be very concise, but that is not the position in terms of Section 174 (1) (a) (b), it is too broad.
“It induces a chilling effect in public officers. If there are no parameters defined in the Act, then every minister is a potential accused person. Such a law cannot be reasonably justified in a democratic society.” Advocate Magwaliba said the apex court should define whether the section conforms to principles of constitutionality.
To support the application, the defence led evidence from Mandiwanzira who narrated the circumstances of the case.
Mandiwanzira said whatever he did which gave rise to the charges, was with the blessings of his principals.
He told the court that he has since written a letter to the Chief Secretary to the President and Cabinet requesting minutes of the meetings he had with the said principals, including the former president Mr Robert Mugabe. Mandiwanzira said he was also seeking authority from the chief secretary to disclose to the court in camera what the minutes contained.
The prosecution led by Mr Michael Chakandida opposed the application for referral to the Constitutional Court.