ZIMBABWE – Bikita West legislator Dr Munyaradzi Kereke has filed an urgent application seeking to block his prosecution on charges of raping an 11-year-old girl until his constitutional challenge to the validity of a statute allowing private prosecution is determined by the Constitutional Court.
Dr Kereke mounted the legal challenge to the validity of Section 16 of the Criminal Procedure and Evidence Act, last month. The statute compels Prosecutor-General Mr Johannes Tomana to issue a certificate for private prosecution where he declines to sue.
But yesterday, Dr Kereke dashed to the Constitutional Court with an urgent chamber application to stay his prosecution shortly after Mr Tomana issued three certificates for private prosecution in respect of the legislator, Telecel shareholder Dr Jane Mutasa and Dr Vivek Solanki.
They are all facing criminal charges. In his application, Dr Kereke wants the court to stop the girl’s grandfather, Mr Francis Maramwidze, from proceeding with his prosecution until his application is finalised in the apex court.
“I seek urgent relief in the form of an order that the fourth respondent (Mr Maramwidze) stays the execution of nulla prosequi certificate that this court ordered the first respondent (PG) to issue to him in CCZ 8/2015 pending the determination of the cause in CCZ285/2015,” said Dr Kereke in this fresh application.
“This is because the execution of that certificate notwithstanding the pendency of CCZ285/2015 is effectively pre-emptive to the determination of the cause in that lis.”
Dr Kereke said the Constitutional Court ordered Mr Tomana to issue the certificate before November 11.
This, he said, meant that Mr Maramwidze would be enabled to prosecute him before the apex court has determined the constitutionality of Section 16 of the CPE Act.
He wants Section 16 of the Criminal Procedure and Evidence Act, scrapped from the country’s statutes.
The legislator contends that the statute is a threat to his fundamental rights and equal protection of the law under Section 56 (1) of the Constitution read together with Section 260 (1) (2) of the supreme law.
Dr Kereke fears that his constitutional application is likely to be heard next year, yet Mr Maramwidze is at large to prosecute him any time from now.
To this end, Dr Kereke said the application was urgent.
“There is tangible prejudice in the fourth respondent being left at large to commence private prosecution against the applicant even pre-emptively…”
Dr Kereke is accused of raping the girl at his Mt Pleasant home in Harare in 2010, but Mr Tomana had been refusing prosecution pleading lack of evidence.