Magaya Seeks ConCourt Referral in Rape Trial, Citing Constitutional Rights Violations and Prosecutorial Misconduct

THE trial of Walter Magaya, founder of the Prophetic Healing and Deliverance Ministries, has hit a snag after his defence team filed an application seeking to have the case referred to the Constitutional Court.

Magaya faces allegations of r@ping three congregants on separate occasions between 2013 and 2018.

The State alleges that Magaya r@ped the first victim on three occasions in 2013, the second victim once in 2016 and the third victim twice in 2018.

Represented by prosecutor Mr Clemence Chimbari and five others, the State was prepared to proceed with the trial, with witnesses, including one based in Ireland, ready to testify.

However, lead defence lawyer Mr Admire Rubaya informed presiding magistrate Mr Francis Mapfumo that his client intended to submit a written application seeking referral of the matter to the Constitutional Court.

In the application, Magaya argues that his constitutional rights have been infringed upon on several grounds.

He cited the withdrawal of charges by one of the complainants, who he says submitted a withdrawal affidavit, supported by her legal counsel, expressing her unwillingness to testify.

Despite this, the State persists with prosecution, which Magaya argues is unconstitutional and amounts to harassment, violating his right to liberty and fair treatment under Sections 49(1)(b) and 56(1) of the Constitution.

Magaya also alleged prosecutorial impropriety, claiming the State admitted to amending a witness statement from another complainant now based in Ireland, undermining impartiality and usurping police investigative functions. He said the failure to disclose the original and amended statements violates his right to a fair trial under Section 69(1).

Regarding DNA evidence, Magaya argued that his DNA was forcibly obtained through an ex parte warrant and in the absence of his legal team. He further claims that the State has not disclosed the DNA results, which may be exculpatory, thereby infringing on his right to prepare a defence under Section 70(1)(c).

Magaya contends that the cumulative irregularities render the prosecution unconstitutional and demands the immediate cessation of proceedings.

The State opposed the application, dismissing claims of rights infringements.

Prosecutors said the contested withdrawal affidavit mentioned by the defence was not concealed but had been with the Prosecutor-General's office for administrative purposes.

They added that their role as the National Prosecuting Authority is limited to prosecution, while the police handle investigations.

Concerning the DNA evidence, the State maintained that Magaya could seek recourse through a review if he is dissatisfied with the manner in which the DNA sample collection was conducted. They clarified that no evidence is being withheld, as the DNA results are still pending.

The matter has been adjourned to tomorrow, with Magaya expected to take the witness stand to support his application before the court.

Source: Herald