BY CHARLES LAITON
FORMER Midlands Provincial Affairs minister, Jason Machaya, who is facing charges of criminal abuse of office over questionable allocation of stands, has accused the State of arresting and charging him over duties he was assigned to do by former President Robert Mugabe.
Machaya, who is facing charges of unlawfully parcelling out land in the Midlands Province, challenged the National Prosecuting Authority (NPA) to interview the former Head of State and confirm his statement.
“When I was appointed Governor and Resident minister, I found a national housing project in place. I simply took over what the late governor Cephas Msipa was doing. Further, the President (Mugabe then) also gave me directives on how I was to do my work. In respect to the charges for which I was/am to be tried, President RG Mugabe specifically directed me to do my work as I did,” Machaya said.
“Further, I wrote detailed monthly reports in respect of all the works I am being tried for, to the President. I also reported my work to the President and Cabinet. The President and Cabinet guided my work and approved everything that I did, especially issues to do with things that are in the charges.”
Machaya also noted that at no point was his work questioned and if anything, he was commended and the former President urged him to do more on housing delivery projects in the Midlands.
“The President who authorised me to do what I did is no longer in office. The State has not interviewed him or recorded a statement from him concerning my activities. I challenge them to do so. My conduct was only adjudged unlawful in about January 2018 after the removal of President RG Mugabe, yet he authorised my work. Is there a law for one government and another law for another government? How was I supposed to know that what I was doing was criminal when what I was doing was being directed and authorised?” he queried.
Machaya made the remarks in his founding affidavit in his application to the High Court where he is seeking a review of his trial proceedings following the dismissal of his application for permanent stay of prosecution.
“In light of the above, the court a quo’s [regional magistrate Sibongile Msipa-Marondedze] decision is thus, shocking and unacceptable. It was unfair for second respondent [Msipa-Marondedze] to hold that our trial was fair (under) the circumstances. There was no justification for the State to wait (for) over 13 years to arrest us for offences whose facts were in the public domain,” Machaya said.
Machaya is being charged alongside former Midlands provincial administrator Cecilia Chitiyo, subordinates Shepherd Marweyi, Matilda Manhambo, Chisainyerwa Chibururu, Ethel Mlalazi, Honest Magaya and Rhory Shawatu who are all cited as applicants, while the State and Msipa-Marondedze are cited as respondents.
In his founding affidavit, Machaya said on March 5, 2019, Msipa-Marondedze, while sitting at Gweru Magistrates’ Court, dismissed his application for permanent stay of proceedings and an alternative referral of the matter to the Constitutional Court.
“. . . the second respondent’s (Msipa-Marondedze)’s decision was grossly irregular. The second respondent was also grossly unreasonable and irrational. The second respondent’s decision was mulcted with bias and malice,” he said adding: “The second respondent’s decision is grossly irregular, unreasonable, irrational, biased and malicious in that on the facts, second respondent grossly-erred, particularly in light of the applicant’s uncontested evidence that all what they did was authorised by their superiors at the time when the events occurred.”
Machaya also said the magistrates grossly erred at law by not upholding what he and his co-applicants did because they had been authorised to do so by their superiors.
“On a question of facts and such error amounting to an error of law, the second respondent grossly erred ignoring everything that the applicants did was done openly and transparently and was in the public domain and further that if the applicant’s conduct was criminal, they ought to have been arrested and charged at the time the alleged offences allegedly occurred,” he said.
Machaya said the magistrate also erred on a question of facts and law by ignoring that he together with his colleagues suffered prejudice as a result of the delays in arresting them for things that have always been in the public domain.
“Most critically, the court ignored the issue of prejudice in the applicants’ inability to now mount proper defence in light of the time taken to bring the charges, the lack of documents, the unavailability of witnesses and memory losses as a result of human life’s natural progression,” he said.
The matter is pending.