23 March 2019

Zimbabwe: . . . Anti-Graft Body to Contest Ruling

The Anti-Corruption Special Unit (ACSU) is breathing fire over the acquittal of businessman Mr Wicknell Chivayo in the $5,6 million fraud charge involving Zimbabwe Power Company (ZPC)'s Gwanda solar project and had by close of business yesterday commenced processes to note an appeal.

Mr Chivayo and his company, Intratrek, were absolved of any criminal liability.

The businessman won his case after the High Court upheld his application for exception to the fraud charges following his application for review of the trial court's decision in November last year.

ACSU head Mr Tabani Mpofu told The Herald yesterday that the decision of the High Court to curtail the proceedings against Mr Chivayo under the circumstances of the case taking into account the relief sought by the accused and the stage it has reached, is unprecedented.

"To that end, the State has already commenced the process to note an appeal against the decision of the High Court with the view to lodging the relevant papers before end of business today (yesterday)," he said.

Chivayo's trial opened last month, with the first State witness Mr Hubert Chiwara giving implicatory evidence against the businessman.

The trial was set to continue on March 28.

Mr Mpofu said the State had not been granted the opportunity to lead evidence in the case against Mr Chivayo and was now seeking the intervention of a higher court to rectify this situation.

"For the avoidance of doubt, the State has collected unassailable evidence against Wicknell Chivayo in both the current case in question and the case of bribery involving the then chairman of ZPC," he said.

"The State's position against Chivayo was vindicated by Justice Musakwa of the High Court who found in December that Chivayo had a to answer in the same case he obtained the latest relief.

"It is the duty of the State, not only to protect public funds from the abuse that was occasioned in this instance, but to ensure that those involved in cases of misuse of public funds are fully prosecuted in the courts."

Granting Chivayo's application for review, Justice Owen Tagu ruled that it was unconstitutional to resolve a civil dispute through the criminal justice system.

"This constitutional provision establishes constitutional protection upon the doctrine of sanctity of contracts, which the accused persons also enjoy," he said.

"No criminal sanction is capable of execution when it is in violation of the Constitution.

"The perpetuation of this criminal case is inherently null and void to the extent that it is ultra vires the supreme law of the land."

Advocate Uriri instructed by Mr Wilson Manase represented Mr Chivayo and his company while Ms Sharon Fero appeared for State and the trial magistrate.

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