Embattled business partners Moses Mpofu and Mike Chimombe have filed an application at the High Court's Criminal Division seeking referral of their case to the Constitutional Court.
Through their lawyers, Advocate Tapson Dzvetero and Ashiel Mugiya the two raised several questions which they feel should be answered, regarding their arrest, incarceration and other events unfolding as their trial is due to be heard before the High Court.
The two have since pleaded innocence before High Court Judge Pisirayi Kwenda.
Mpofu and Chimombe among other things are aggrieved with the fact that assessors who are sitting with Kwenda are above the age of 70.
The two are also aggrieved with the fact that Kwenda decided to allow the broadcasting of their trial without seeking their audience as well as that of the State.
The judge is also alleged to have roped in a new assessor without briefing them of the changes.
"Both the current assessors who constitute the court together with the Honourable Justice Kwenda, are above (70) years of age.
"One of the Honourable Assessors who sat on the 1st of October, 2024; the first day of the hearing was on the second day replaced.
"The accused and their legal practitioners were not involved in this reconstitution of the bench, and neither was their consent sought.
"On the third day of the hearing, the learned judge (it's not clear whether in the presence of assessors or not) indicated that the court had commenced late because he was entertaining in chambers an application to have the trial proceedings live-streamed.
"The learned judge advised that he had granted the application for the media to livestream the proceedings in chambers.
"This alleged application was entertained in the absence of the accused persons and to the exclusion of the state," the lawyers submitted.
They also said it was not clear who the applicants were.
"It is not clear who were the parties to that application as the accused persons were not cited nor served with a copy of such application," they wrote.
According to the application on or about the 16th of June, 2024 the Zimbabwe Anti-Corruption Commission chairperson Michael Reza and Commissioner Thandiwe Mlobane issued various press releases in various media and social media outlets indicating their interest in interviewing their clients as part of an ongoing investigation indicating that ZACC had: "taken note of a letter purportedly written by Messrs Moses Mpofu and Mike Chimombe, to a South African based company, REN-form, demanding payment and resolution of a contractual dispute ... [and] ... audios allegedly attributed to Mr. Wicknell Chivhayo. "
The lawyers said the letter and recordings allegedly raise[d] issues related to money laundering and abuse of office that fall within the purview of the Commission.
Consequently, ZACC requested to interview Mpofu, Chimombe, and Chivhayo on the said matters and also on the Presidential Goats Scheme mentioned in one of the audios.
On the 17th of June, 2024 the accused persons wrote to ZACC indicating that they had been aware of the social and print media statements of ZACC and that they were out of the country and would present themselves upon return.
The lawyers said upon return, their clients presented themselves to ZACC and several times coming from home.
On the 20th of June, 2024 upon again presenting themselves they were requested to go to the Magistrates Court for an initial appearance.
"They went to court in their own private vehicle and presented themselves to court with their full liberty and cooperation.
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"The Magistrates Court remanded them in custody despite all the above facts," they complained.
They further submitted that the High Court refused to entertain their clients' appeal on the basis that their indictment rendered their appeal moot.
"This Honourable Court refused to entertain the accused persons' bail application under HCHACC 183-4/24 on the basis that their indictment precluded them from making a bail application until the trial date or unless they anticipated the trial date."
They feel this was wrong and want all these issues to be looked into by the Constitutional Court through leading evidence.
They contend that there is selective prosecution against the accused persons.
They want the upper court to declare that court proceedings presided over by a bench with members over the age of 70 is a nullity.
