By Mary Taruvinga
EMBATTLED Tourism Minister Prisca Mupfumira, who faces several criminal abuse of office charges, will spend her second weekend in prison custody after her bail application hearing was Friday postponed to Monday by a High Court judge.
The charges against the top government official were triggered by a forensic audit report by Auditor General Mildred Chiri on the National Social Security Authority (Nssa) from which some $95 million was reportedly siphoned on her “verbal orders.”
High Court Judge, Erica Ndewere said the minister had a right to bail hearing despite Prosecutor General, Kumbirai Hodzi’s certificate barring any court to entertain her bail “while her complex case” is being investigated.
Ndewere said chief magistrate, Munamato Mutevedzi misdirected himself in refusing to entertain Mupfumira’s bail.”
“In my view, the issue of bail arose in the court aquo but the magistrate simply refused to deal with it.
“This Court is of the view that it has jurisdiction. Detailed reasons will be given later. Bail application will therefore treated as bail appeal hearing,” said Ndewere.
Mupfumira’s lawyer, Advocate Lewis Uriri who is being instructed by Charles Chinyama then went on to file bail application on behalf of Mupfumira.
Uriri said the state has no evidence against his client, rendering her fit for bail.
Prosecutor Sharon Fero challenged bail and insisted that the State has a strong case against the Minister.
She asked for a postponement of the case to Monday to allow the court to hear the compelling reasons and for the Investigating Officer (IO) to be called.
The judge allowed the postponement but emphasised her earlier remarks that Mutevedzi slept on the job.
“We are dealing with an unusual case where there is an appeal before this court now being treated like a fresh bail application. We have a situation where a judicial officer refused to entertain the issue of bail which I have already said was a misdirection.
“The issue of bail was not well ventilated, so it is fair that I allow the State to call the IO. This will give the defence an opportunity to cross examine him because this court doesn’t want to repeat the same mistake.
“We ended up having a one-sided case in which the issue of the certificate only was entertained,” said Ndewere before she postponed the matter to Monday for continuation of bail hearing.
Fero had argued that there was no proper appeal before the court considering that a certificate barring any court to entertain the issue of bail before 21 days lapse has been tendered already.
The prosecutor argued that the High Court has no jurisdiction to hear Mupfumira’s bail.
“An aggrieved party can only approach this court when an inferior court had made a determination in relation to bail.
“I submit that the magistrate did not entertain the issue of bail. He was never asked to make a determination. He did not refuse to grant the applicant bail so for that reason the appeal ought to be struck off the roll,” said Fero.
“This court has no right to hear a case which is being brought via the back door. The applicant is not seeking a review on the tendering of the certificate which only leaves us with a belief that they were satisfied with the magistrate decision concerning the production of the certificate,” she said.
The certificate was produced in terms of Section 32(3) (b) of the Criminal Procedure and Evidence Act which states that if the Prosecutor General believes that a matter is complex and that there is difficulty in acquiring evidence relating to an offence or that there is likelihood that the accused may conceal or destroy evidence and if a magistrate is satisfied, will remand an accused in custody for 21 days.
Mutevedzi, who first entertained the case, ruled that he cannot entertain the issue of bail.
“The effect of that certificate is to oust this court and every other court’s jurisdiction in determining issues to do with the accused person’s ambition to bail during the lifespan of that certificate. I therefore order the detention of the accused person for 21 days as prayed for in the PG’s certificate.”
But Uriri insisted that they have a right to be heard and the Judge went on to uphold his arguments.