The State has dismissed former vice president Phekezela Mphoko’s application seeking presidential immunity in his criminal abuse of office case since he does not enjoy the honour after leaving office.
Prosecutor Lovert Masuku said said Mphoko, who appeared in court this morning, did not such privileges since he was not the state vice president.
Mphoko is facing the charges after allegedly ordering the release of two former ZImbabwe Revenue Authority senior employees who were in custody at Avondale Police Station
Mphoko’s lawyer Tawanda Zhuwarara had raised five questions which he said could only be answered at the Constitutional Court.
In his application to approach the Constitutional Court, the former Vice President raised five questions.
“Whether Presidential Immunity as set out in section 98 of the Constitution extends to acts and or commissions by a Vice President (and former Vice President) who alleges and intends to prove that such acts and or omissions were actuated during the discharge of his or her duties in accordancIe to section 99 of the said Constitution.
“Whether the defence of Good Faith as enunciated in section 98 (4) of the Constitution is available to a Vice President (and former Vice President) who alleges and intends to prove that such acts and or omissions were actuated during the discharge of their duties in accordance with section 99 of the said Constitution.
“Whether by operation of section 99 and 107 of the Constitution of Defence of ‘Obedience of Orders’ is available to a Vice President (and former Vice President) who alleges and intends to prove that such acts and or omissions were actuated during the discharge of their duties in accordance with section 99 of the said Constitution.
“Whether by operation of section 101 (1) as read with section 207 (2) of the Constitution the President and or Vice President has the immutable authority to direct, intervene, instruct and command the Police Service and its constituent members.
“Corollary to the aforementioned question is the question whether the defence of the claim of right is available to a President or Vice President who intervenes in the activities or functions of the Police Service and its constituent members,” read the application.
However, Masuku argued that there was no point in the defence raising Presidential Imuunity issues for Mphoko as “that immunity falls away” once the person has left office.
He further argued that the defence confirmed what really transpired on the day in question, adding that “the facts are correct and confirm the offence was committed.”
The State also argued that some of the issues the defence raised were matters to be heard at trial not the Constitutional Court.
“The facts provided that an offence was committed, there is no dispute about that,” Masuku argued.
Harare Regional Magistrate Hosea Mujaya is expected to make a ruling on December 16 this year.
The case against Mphoko is that after Davison Norupiri and Moses Juma, who were senior employees at Zinara, were arrested members of the Zimbabwe Anti-Corruption Commission and taken to Avondale Police Station pending their appearance in court the next day.
Mphoko, who was at the time Acting President, went to Avondale Police Station, criminally abused his duty as a public officer and ordered the immediate release of the two.
The officer-in-charge reportedly refused to released Norupiri and Juma before complying with Mphoko’s orders under duress.
Mphoko allegedly drove away with the duo in his official vehicle.
ZACC officers went to the police station the next day intending to take Norupiri and Juma to court but discovered that they had been released from police custody on Mphoko’s orders.