Rape trial: Magaya seeks ConCourt referral

Walter Magaya, the founder of Prophetic Healing and Deliverance (PHD), filed a Constitutional Court reference Wednesday, claiming that his fundamental rights are being violated.

The clergyman stands accused of raping two congregants on five separate occasions between 2014 and 2018.

Magaya’s attorneys claimed in an appeal submitted to Harare regional magistrate Francis Mapfumo that the prosecution had unlawfully usurped police powers, particularly by taking his DNA samples against his will while he was under remand.

They also said the State had amended the witness statements several times, adding that one of the witnesses had since withdrawn her case against Magaya and that the withdrawal affidavit was in the possession of her lawyer, Tapson Dzvetero.

“I pause to note that these admitted revelations, made openly on record, by a senior official in the National Prosecuting Authority (NPA) smack of prosecutorial impropriety, where the prosecutors conflate their prosecuting functions with investigations, resulting in them clearly usurping the role of the police services to conduct investigations.

“The recording and amendment of witness statements is part of investigations, which is the exclusive role of the police. 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.

“This conduct is not only unlawful but prejudicial. It reveals bias and favour towards the complainant, while subjecting me to a case that has been panel-beaten into shape through prosecutorial interference.

“I was never served with the original statement that led to my arrest, nor with the amended statement referred to by Tendai Shonhayi in her submissions to the Court. The net effect is that I stand accused on the basis of a manipulated and unlawful process, where the prosecution has abandoned its constitutional role of impartiality and has instead descended into the arena, manufacturing evidence to sustain charges,” read part of the application.

The State, led by Foelane Muronda, is, however, opposed to Magaya’s application, arguing that the NPA maintains a strict policy of separation of powers while adding that Magaya was in possession of an alleged “illegal” withdrawal affidavit by one of the complainants.

“The police investigate and the NPA prosecutes. The warrant of search and seizure was obtained and executed by the police independently without the involvement of any official from the NPA. The Applicant’s possession of a confidential and private letter between the Antonio Dzvetero legal Practitioners and the Prosecutor General is highly irregular and suggests underhandedness. As this document was never intended for third party consumption, the affidavit relying on it is improperly before the court and is calculated to embarrass the State,” the State argued.

The matter was postponed to tomorrow where Magaya will lead evidence on why he wants to be referred to the Constitutional Court.

Magaya is also facing additional four counts of rape, where he allegedly raped four congregants at his Yadah Hotel at different occasions.

In that rape matter, he also filed for referral to the Constitutional Court, but the ruling is yet to be made.