FORMER vice president Phelekezela Mphoko’s abuse of office trial failed to kick off yesterday after he tendered an application for exception to the charge, arguing that it was vague and unsustainable.
Mphoko is being accused of illegally ordering the release of two suspects David Norupiri and Moses Juma from lawful custody during his tenure of office in 2016.
He was represented by Tembinkosi Magwaliba, who was being instructed by Zibusiso Ncube, when he appeared before Harare regional magistrate Hosea Mujaya.
Magwaliba made a two-fold application for postponement because the clerk of court had not furnished them with a transcribed record of proceedings to adequately prepare and that he had filed their application for exception.
Prosecutor Michael Reza initially opposed the application, arguing that it was unreasonable that Magwaliba would submit that he could not adequately prepare in the absence of a record of proceedings, but still file a detailed exception application.
The parties later agreed that Reza would file his response on February 27 after the record of proceedings is availed on February 19. Mujaya will pass the verdict on March 5.
“The prosecution expects the accused person to plead in the dark. That is not consistent with the right of the accused person to a fair trial,” Magwaliba said.
“The alternative charge of obstructing the course of justice was defective because it could not be sustained.”
Mphoko argued that he was not the one who released Norupiri and Juma from the police station but an unidentified officer-in-charge.
“The accused person can only be guilty of obstructing justice if the officer-in-charge can avail himself of the defence of obedience to lawful or unlawful orders in terms of section 268 and 269 of the Criminal Law (Codification and Reform) Act,” Magwaliba argued.
“It becomes clear therefore that the person who, on the facts obstructed justice is the officer-in-charge not the accused person and for those reasons, the charges cannot succeed as they lack essential elements and fail to establish the alleged offences.”