By Mary Taruvinga
SUSPENDED prosecutor, Edmore Nyazamba has allegedly confessed to deliberately failing to oppose an application for exception to charges of criminal abuse of office filed by former Cabinet Minister Supa Mandiwanzira.
The revelations are contained in an application by Prosecutor General (PG), Kumbirai Hodzi who is seeking reversal of a judgment in which charges of criminal abuse of office against Mandiwanzira were quashed by a High Court judge.
The ex-Cabinet Minister, stands accused of unlawfully awarding a consultancy deal to a South African based firm, Megawatt Company during his time in office resulting in State telecommunications company NetOne losing US$5 million.
Mandiwanzira however, ‘successfully challenged’ his prosecution arguing that he never strayed from his duties as a public officer, before High Court Judge Justice Nicholas Mathonsi.
Earlier, Harare Regional magistrate, Elijah Makomo had dismissed Mandiwanzira’s application for exception prompting the High Court appeal before Justice Mathonsi.
But in his appeal which was filed on Thursday, Hodzi said the judgment had been reached because Nyazamba misled him after he deliberately failed to respond to Mandiwanzira’s application.
“This application is made on the basis that the applicants were not in willful default, and always intended to oppose the application for review.
“In addition, the applicants had every reason to believe that their opposition to the application enjoyed very high prospects of success,” said the PG.
Hodzi is the first applicant while NPA was cited as the second applicant.
Mandiwanzira and Makomo were cited as first and second respondent respectively in the application.
Hodzi then went on to nail Nyazamba: “Mr Nyazamba, a prosecutor in the employ of second applicant (NPA) was assigned the matter with instructions to oppose the application on the applicants behalf.
“I must point out at this stage that Mr Nyazamba, did not have instructions to consent to the order but to oppose the application.”
Hodzi said NPA was supposed to file notice of opposition by March 19 2019 before Mandiwanzira would respond by 28 March and also file his heads of arguments by April 8 before the state filed the same.
He said he was shocked to hear the news that charges against Mandiwanzira had been quashed from the unopposed roll.
“It was the first time the applicants knew that there had been an order issued on the application for review. As it did not make sense to me that the press reports were talking about an unopposed roll, I enquired of Mr E Nyazamba as to what had happened.
“His reply to me was that he filed opposing papers and that review application had been determined on the merits. In fact it was on the basis of this representation that I initially responded to the press,” said Hodzi.
After his suspension, Hodzi says Nyazamba then wrote that he unilaterally took the decision not to file notice of opposition despite having agreed to do so.
“I am the only person constitutionally empowered to decide whether or not someone must be prosecuted in Zimbabwe,” said Hodzi adding Nyazamba was aware of this fact but went on to misled High Court Judge Justice Muremba.
Hodzi said Nyazamba hoped the PG would take the matter at face value when he “lied” that the issue had been decided on merit.
Hodzi accused Mandiwanzira of “snatching at a judgment” arguing “the courteous and professional thing would have been to call Mr Nyazamba or myself to find out why papers had not been filed.”
“This would have saved the nation the anxiety and negative publicity around 1st Respondent (Mandiwanzira)’s case thus preserving public confidence in our criminal justice system,” he said.
The PG said by filing the appeal, his intention is to make things right and gain public confidence as the head of NPA suggesting Mandiwanzira need to have his day in court.
“It would not be in the interests of justice for the accused person to not face his day in court owing to the insubordination of an employee of NPA.
“In fact, it might open avenues for corruption where criminal defendants file spurious exceptions and applications for review then approach officials charged with opposition such applications and offer them bribes to not file opposing papers,” he said.
Mandiwanzira also stands accused of appointing his unqualified personal assistant Postal and Telecommunications Regulations Authority of Zimbabwe (Potraz) board member.