PHD Ministries leader Walter Magaya’s rape trial opened on Friday with his lawyer, Admire Rubaya, opposing the State’s application to have the matter heard in the Victim Friendly Unit (VFU), arguing that proceedings should be held in open court.
The State, represented by Clemence Chimbari, applied for the trial to be moved to the VFU, saying the complainant is a vulnerable church member who requires protection.
“We apply that the case be heard in the VFU. The witnesses have gone through quite a lot, mentally, emotionally, and therefore it will not be in the interests of justice and good mental health of the witness to testify in an open court,” he said.
Chimbari said six witnesses are expected to testify, with only those classified as vulnerable using the VFU. Some, he added, had expressed fear of direct contact with Magaya.
Rubaya opposed the application, accusing the State of making emotional claims without evidence and arguing that the prosecutor was not qualified to make psychological assessments.
“The State believes they are cousins of the court; they have come to you without anything except their word of mouth. They have said a lot has happened. What is a lot? We are not prophets," he said.
Rubaya argued that the prosecution should provide cogent evidence to prove the witnesses were mentally and emotionally affected. He suggested the court could privately interview the witnesses, as allowed by law, to determine their preferences before deciding on VFU use.
“What if the witnesses say they want to face the person who raped us?” he asked. “Even the accused wants to face the people who are accusing him of rape. How are we going to measure the demeanor of those witnesses if there will be an intermediary?”
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Rubaya emphasised that all the complainants were adults and accused the State of inconsistency, saying it had previously publicised details of the allegations before shifting to demand a protected environment.
He reminded the court that a protection order for witnesses already existed and had been complied with.
Magistrate Esthery Chivasa granted the State’s application, ruling that vulnerable witnesses require protection.
“The court believes a vulnerable witness is the one who needs protection. There is no need for clear evidence of emotional stress. There is no need for stress to be proved. There is no need for a medical affidavit for that,” she ruled.
“Age is not a factor. It does not need one to be a child; even an adult can be a vulnerable witness. The court must balance the two competing parties. It can be very traumatic to face an accused person. From what the State has presented so far, it shows the witness is indeed vulnerable.
“There is a need for the court to protect such a witness.”
Following the ruling, Rubaya indicated that the defence would seek referral to the Constitutional Court, arguing that Magaya’s rights were being infringed. The magistrate allowed the defence to file its application this morning.
