Magaya seeks Constitutional Court referral, says complainants withdrew allegations

Cleric and founder of the Prophetic Healing and Deliverance Ministries, Walter Magaya, has filed another application seeking referral of his ongoing rape case to the Constitutional Court, arguing that the prosecution against him is unconstitutional and violates his right to a fair trial.

The application was filed before Harare Regional Magistrate Francis Mapfumo through his lawyers Admire Rubaya and Everson Chatambudza. It follows an earlier request for constitutional referral in which Magaya argued he had been denied a trial in open court. A ruling in that application is still pending.

In a founding affidavit, Magaya said he was seeking the intervention of the Constitutional Court over “certain questions touching on the validity of certain processes which affect my fundamental rights.”

Magaya is facing six counts of rape involving three complainants, allegations he says he has “consistently and vehemently denied.”

“I stand charged with six counts of rape… relating to three complainants,” he states in the affidavit, adding that the alleged incidents are said to have occurred between 2013 and 2018.

However, he argues that the prosecution has been irregular and prejudicial.

“I have, for some months now, been the victim of these false complaints of rape,” he says.

Magaya also claims that the case should not proceed because some of the complainants have withdrawn their allegations.

“The affidavit confirms that the complainant no longer wishes to testify and that she has… communicated this position to the Prosecutor General,” he states.

“In the face of such a clear withdrawal… I was surprised and astonished to learn that the state was still bent on proceeding with the trial.”

He argues that continuing with the prosecution despite the withdrawals amounts to an abuse of the justice system.

“Without the complaint, the charge collapses… To do so is not an exercise of lawful authority but a hollow performance masquerading in the name of the law.”

Magaya also alleges prosecutorial misconduct after a National Prosecuting Authority official disclosed in court that a complainant’s statement had been amended.

“The recording and amendment of witness statements is part of investigations, which is the exclusive role of the Zimbabwe Republic Police,” he argues.

“In this case, the public prosecutors admitted to amending a witness statement clearly dissatisfied with the original version because it did not advance the narrative they intended to choreograph against me.”

He further claims that he was served with a later witness statement long after his arrest while the original statement that led to his arrest was never disclosed.

“I was served only with a belated statement… more than two months after my arrest and placement on remand. I was never served with the original statement that led to my arrest.”

Magaya also raised concerns over the handling of DNA evidence.

“I was then taken from Harare Remand Prison to Parirenyatwa Hospital against my will and in the absence of my legal practitioners, where my DNA was extracted,” he said.

“I have not been served with the results of that DNA test… The State’s failure to disclose these results… suggests that the results may be negative and do not support the State’s case.”

He argues that the cumulative effect of these actions violates constitutional guarantees.

“I stand accused on the basis of a manipulated and unlawful process… This is a direct violation of my right to a fair trial under Section 70 of the Constitution of Zimbabwe.”

Magaya is asking the court to refer several constitutional questions to the Constitutional Court, including whether the continued prosecution violates his rights to liberty, equality before the law and a fair trial.

“The process sought to be activated by the state yields by its very nature the deprivation of my liberty. That deprivation is… unlawful and is consequently of no validity,” he states.

He adds that the issues he has raised warrant constitutional scrutiny.

“I therefore contend that I have raised serious issues worthy the attention of the Constitutional Court.”

The National Prosecuting Authority is opposing the application. In an opposing affidavit, Chief Public Prosecutor Foelane Muronda denied some of Magaya’s claims regarding the handling of a withdrawal letter.

“This is denied. On the day of the trial… the letter… had not yet been referred to the trial prosecutor as it was addressed to the Prosecutor General… and was undergoing administrative processes,” Muronda said.

The matter returns to court on Thursday for continuation of the hearing.

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