ZIMBABWE – Bikita West legislator Munyaradzi Kereke’s trial on charges of raping an 11-year-old relative will now commence after the Constitutional Court yesterday revoked the interdict stopping his prosecution.
Two weeks ago, Kereke won a reprieve to stay the criminal proceedings against him until his constitutional challenge to the validity of a statute allowing private prosecution was decided but yesterday the tide turned against the legislator after his lawyers were served with papers from the Prosecutor-General’s Office declining to support his case.
His team of lawyers led by Advocate Lewis Uriri had to seek a brief adjournment to consider their case and when the court resumed the defence applied for a postponement.
But Chief Justice Godfrey Chidyausiku told the lawyer that in the event that Kereke wanted a postponement the interdict would be revoked.
He warned the defence that if they wanted it extended, they had to convince the judges.
After the lawyers and their client deliberated over the case, Adv Uriri applied for postponement to an earliest date next year.
He restricted his argument to the postponement and left the issue on the interdict in the hands of the court.
The PG’s representative, Ms Olivia Zvedi, did not oppose the application but the victim’s family lawyer, Mr Charles Warara, opposed the application arguing it lacked merit.
After hearing submissions presented before the court, the full bench of the Constitutional Court unanimously agreed to grant the postponement, but with a condition that the interdict was discharged.
“The application for postponement is granted upon the following condition — that the registrar is directed to set this matter for hearing at the earliest available date next term,” he said.
“The order staying the criminal proceedings pending the determination of this matter be and is hereby discharged.”
In its response to Kereke’s application, the PG’s Office stated in its papers that the challenged Act placed an obligation to issue a private prosecution certificate on the PG’s Office and not on the legislator.
“In this case the applicant (Dr Kereke) has failed to establish that a constitutional right in respect to himself has been or is likely to be violated,” she stated.
In that regard the PG’s Office urged the court to make a finding that Kereke had no legal standing to bring such an application in terms of the provisions of the Constitution.
Mr Warara welcomed the court’s decision saying they will proceed with prosecution of Kereke.
“There is no stopping because the application that was before the court on urgent basis was to stay those proceedings,” he said.
“Now those proceedings are no longer affected by what is happening in the Constitutional Court we just proceed with the prosecution.” Mr Warara said the matter would proceed by way of summons.
Adv Uriri said the ruling of the court meant the question of constitutional validity of Section 16 on which the criminal proceedings were based remained live before the court.
“The determination of the validity of Section 16 will naturally impact upon the validity of any proceedings that might have been commenced,” he said.
“I must state on record that our instructions are that Dr Munyaradzi Kereke has got nothing to hide, has got nothing to fear and will defend his innocence to the depth even where criminal proceedings were to be commenced we are quite confident they will bear no result.
“This is no more than sustained unmitigated and protracted harassment of a citizen. He will definitely, in those criminal proceedings, have those malicious allegations dismissed.”
Kereke is contesting the validity of Section 16 of the Criminal Procedure and Evidence Act. The statute compels the Prosecutor-General to issue a certificate for private prosecution where he declines to sue.
He wants the section of the law struck down. 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.
Kereke is accused of raping the girl at gunpoint at his Mt Pleasant home in Harare in 2010, but Prosecutor-General Mr Johannes Tomana had been refusing prosecution pleading lack of evidence.
His defiance resulted in him being slapped him with a 30-day imprisonment which was wholly suspended on condition that he complied with the court order within 10 days from that day.
He has since complied with the court order. Mr Tomana also issued Telecel Zimbabwe a certificate to privately prosecute its key shareholder Jane Mutasa on charges of fraud involving $1,7 million of airtime recharge cards.
The PG also issued a certificate of private prosecution against Vivek Solanki, who is facing charges of swindling African Medical Investments in an ownership wrangle over Trauma Centre.