The High Court has blasted the police over the arrest of businessman and Intratrek (Private) Limited director Wicknell Chivayo on weak charges of allegedly swindling Zimbabwe Power Company (ZPC) of over $5 million, money laundering and violating Exchange Control Regulations.
In his full judgment for granting Chivayo $2 000 bail made available yesterday, Justice Benjamin Chikowero said police unjustifiably ambushed Chivayo at Robert Gabriel Mugabe International Airport while he was on his way to South Africa and arrested him.
Justice Chikowero slammed the investigating officer, Assistant Inspector Benjamin Nyahema, who testified during the bail application in the lower court, for being unhelpful to the case.
"He either did not know or did not dispute crucial pieces of evidence put to him by the applicant's counsel in cross-examination," said Justice Chikowero.
"The effect of that testimony was to show that the State case was extremely weak and the defence very strong. For example, he could not dispute that there was no dirty money in regard to the money laundering charge. The source of money was known. It was the State itself."
Justice Chikowero noted that Asst Insp Nyahema was unable to dispute that Chivayo's assertion that neither him nor his company took money outside Zimbabwe in breach of the Exchange Control Act.
On fraud charges, the higher court said Asst Insp Nyahema was also unable to show the misrepresentation claimed by the State.
"He was not able to refute applicant's assertion that the facts of the matter reflected a civil rather than a criminal matter," said Justice Chikowero. "The civil matter involved Intratreck Zimbabwe (Pvt) Ltd as one of the contractual parties and not the applicant."
Justice Chikowero further noted that the docket was assigned to Asst Insp Nyahema on the day Chivayo was arrested by other police officers at the Robert Gabriel Mugabe International Airport.
He said Chivayo was ambushed at the airport when he was about to leave the country for South Africa.
"It seems to me that the police not only unjustifiably ambushed the applicant, but clearly played to the gallery given the public profile of the applicant," he said.
"It was for these reasons that I found that the learned magistrate misdirected himself in finding that there existed factors with the cumulative effect, which constituted compelling reasons to deny applicant bail."
Justice Chikowero noted in his judgment that there was nothing on record to show that the prosecution had a strong case against Chivayo.
He said the magistrate was wrong in factoring in the strength of the case for prosecution in deciding whether Chivayo was a flight risk or not.
Most important of all, Justice Chikowero said there was clearly no evidence that Chivayo was a flight risk having been aware of the allegations since September last year and had flown to virtually every corner of the world and returned to Zimbabwe.
"That is positive evidence negating a finding of applicant as a flight risk," he said. "There was, therefore, no justification for a finding that the strength of the State's case was likely to induce the applicant to flee to avoid possible conviction and long incarceration."
Chivayo's trial that was set for August 27 to 29 at the magistrates' courts failed to commence yesterday because the prosecution was not ready.
Defence lawyer Advocate Lewis Uriri instructed by Mr Wilson Manase argued that it was an inconvenience to his client since he was a businessman of international repute.
He gave notice that the defence will tomorrow apply for relaxation of the bail conditions.
Chivayo was denied bail by Harare magistrate Mr Elisha Singano on the basis that he was a globetrotter and could skip the country to dodge prosecution.