Magaya referred to ConCourt
20 December 2016
PROPHET Healing Deliverance Ministries leader Prophet Walter Magaya Monday had his rape case referred to the Constitutional Court.
This follows his application to have the matter heard at the apex court.
Prophet Magaya, in his application, complained that the State was violating his constitutional rights by intending to pursue with the matter after the complainant confessed that she made false allegations.
Magistrate Muchuchuti-Guwuriro noted that reasonable suspicion that the prophet committed the offence could no longer stand considering that the complainant confessed she made false allegations against him.
“From the evidence that was presented before the court it is not in dispute that the complainant made an about-turn and confessed that she made a false accusation against the accused.
“It is fact that the complainant made false allegations and that takes away the State’s reasonable suspicion.
“Given the circumstances the reasonable suspicion cannot stand which then raises Constitutional issues.
“For the State to pursue with the matter, would result in breaching of the accused right to liberty,” said magistrate Muchuchuti-Guwuriro.
The court also said that the questions, which the ConCourt would be left to deal with is to determine whether the decision by the acting Prosecutor General to indict the prophet Magaya is in violation of
Section 66 Constitution and breach of the protection law guarantee as enshrined in the Constitution.
Magistrate Muchuchuti-Guwuriro also said that the ConCourt would determine whether it is in violation of Prophet Magaya’s right to liberty considering that the complainant had confessed that she raised false allegations.
Magaya, who was being represented by advocate Thabani Mpofu, Admire Rubaya, Oliver Marwa and Everson Chatambudza, in his application said State’s decision to commit him to trial after the complainant intents to withdraw was tantamount to abuse of power.
“Complainant deposited two affidavits and said that she was not raped by the prophet.
“What the affidavits say is now common cause.
“What we have now is State abuse of power because it is unlawful, unacceptable and contrary to law for the acting Prosecutor General to commit a person to trial when the complainant owned up and confessed that she lied.
“A person can be only indicted for trial if there is judicial controversy. If there is no judicial controversy there is no trial.
“It is abuse of power for the State to ask for permission to commit an accused to trial because there is no complainant.
“This intention is a tainted intention and it is not a bona fide prosecution intention. It harasses a person.
“The complaint on under oath fully aware of the consequences owned up and said I lied.
“What did the State do to dispute that it is not genuine? Instead the State is harassing him which is against the law of protection guarantee,” he said.
State representative, Sebastian Mutizirwa is his response said that Prophet Magaya’s application was frivolous and vexatious.
Prosecutor Mutizirwa said that the prophet was blind to the fact that the matter was not between the woman who claimed to have been raped but it was between him and the State.
“Under normal circumstances, it is the State which is supposed to tender the withdrawal if need be so.
“Liberty of the accused can be taken away and that is the reason why the accused is still on remand.
“The State will furnish the accused with trial date at the High Court meaning his right to fair hearing has not been abused,” he said.
Magistrate Muchuchuti-Guwuriro granted the application and removed Prophet Magaya from remand pending the ConCourt decision.