THE Supreme Court has dismissed an appeal by Lawyers Nyaruwata, a senior army officer with 2 Engineers Squadron, who was convicted and sentenced to five years imprisonment by a general court martial after being cashiered from the army.
The bench of Justices Samuel Kudya, Joseph Musakwa and Susan Mavangira ruled that Nyaruwata’s appeal lacked merit.
Nyaruwata was charged with criminal abuse of duty as a public officer. Between September and November 2017, he unlawfully withdrew troops from secondment at Rusununguko High School in Mudzi and Gozi Primary School in Hwedza without authorisation from command headquarters.
Evidence presented at the court-martial showed that Nyaruwata solicited money from the MPs of the two constituencies and put it to personal use, including purchasing a vehicle and paying his daughter’s university fees. He also made the MPs to pay trade test fees for some of his subordinates.
When the MPs stopped providing funds, Nyaruwata allegedly retaliated by withdrawing the troops to pressure them into compliance.
Nyaruwata pleaded not guilty to the charges and entered a special plea of prescription in relation to the allegations concerning the vehicle and payment of his daughter’s fees.
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He argued that the issue of the alleged donations had prescribed, noting that in terms of section 46(4) of the Defence Act, no case may be tried after three years from the date the offence was committed.
He submitted that the issue of receiving gifts allegedly happened on or before September 20, 2016.
He further submitted that, in accordance with section 30(1) of the Defence Forces Courts Martial Procedure Regulations of 1956, the court a quo lacked jurisdiction to hear the matter due to the lapse of time.
However, the general court martial ruled in his favour, holding that the allegations concerning the demand and receipt of money from legislators had indeed prescribed.
The State then proceeded to address the issue concerning Nyaruwata’s removal of troops from secondment without authorisation.
The case had eight witnesses, which included two MPs who were key witnesses.
David Musabayana, the Hwedza North legislator, confirmed that Nyaruwata requested money from him, stating that the funds were intended to assist the troops with their trade tests.
He further stated that, upon realising that the money was intended for Nyaruwata’s personal use, he stopped sending funds to him.
He told the court that Nyaruwata then threatened to withdraw the troops from the constituency.
He said when he visited the site with food for the troops, he found that they had left a week earlier.
Musabayana said the withdrawal occurred while materials were still on site and after speaking with the commander, he realised that Nyaruwata had falsely claimed that there were no building materials.
One Sergeant Babvu, who served under Nyaruwata during the secondment, testified that when the troops were withdrawn, the building materials had begun to diminish.
The State also led evidence from Lieutenant Colonel KG Manhimanzi, who stated that withdrawal orders could only be issued by the commander and that troops could not be withdrawn in the absence of such an order.
Public officers who worked under Nyaruwata confirmed that he had communicated that the troops’ withdrawal was due to a shortage of building materials.
The State further led evidence from Jonathan Samkange, the Mudzi East MP, who testified that he had given Nyaruwata money for his personal vehicle and his daughter’s fees.
He also told the court that he had assisted in paying fees for the troops’ trade tests. The MP said he stopped sending money when Nyaruwata’s financial demands became increasingly persistent.
Samkange later discovered that the troops had indeed been withdrawn from the project and, together with Musabayana, they approached Brigadier General Fidelis Mhonda and reported Nyaruwata's conduct.
Mhonda gave evidence that he had given the order for the withdrawal of the troops, but later found out through the MPs that Nyaruwata had solicited money from them before threatening and withdrawing the troops.
Mhonda confirmed that troop redeployment could only be authorised by the commander and Nyaruwata misled him into making the order of withdrawal of the troops.
In his defence, Nyaruwata said the troops were withdrawn because they were due to write their trade tests and there were no materials at the sites where they were working.
He also denied demanding money from the two MPs, adding that his interactions with them arose from working together and developing a rapport, which led to discussions on family matters and politics.
According to Nyaruwata, any assistance received from them was given and accepted in good faith and out of sympathy, rather than as a result of any improper demand.
The court martial held that although Nyaruwata had obtained authority to withdraw the troops from the constituencies, it was granted based on misinformation.
The court martial further ruled that Nyaruwata abused his office by threatening the honourable MPs with the withdrawal of troops if his demands for monetary benefits were not met.
Aggrieved by the decision of the court-martial, he appealed to the Supreme Court saying the court-martial erred on the point of law in finding him guilty of the offence.
However, after hearing the arguments from both parties, the Supreme Court bench dismissed the application due to lack of merit.