By Marshall Bwanya
Harare – Incarcerated business duo Moses Mpofu and Mike Chimombe have challenged the constitutionality of their fraud charges and trial processes before the High Court, seeking referral to the Constitutional Court.
Chimombe and Mpofu are accused of defrauding the government of US$7,7 million through a fraudulent goats supply tender issued by the ministry of lands and agriculture.
Prosecutors allege that the two suspects submitted a fraudulent tender through their company, Blackdeck Private Limited, in September 2021.
The tender was for the supply of 632,001 goats under a government scheme worth US$87,757,168.
The goats were intended to be distributed nationally to needy households, who would then pass the animals on to other needy households after they had kids.
Appearing before High Court judge, Justice Pisirayi Kwenda, on Wednesday through their legal counsel, Chimombe and Mpofu alleged that external forces were orchestrating their prosecution.
Mpofu, represented by defense lawyer Tapson Dzvetero, sought to challenge the Magistrates Court’s decision regarding his liberty and bail, as well as the alleged violation of his right to equal protection and benefit under the law.
He argued that the charges related to the failure to supply goats as per a contract with the ministry amounted to unlawful imprisonment based on inability to fulfill a contractual obligation.
Furthermore, Mpofu contended that his selective prosecution, driven by personal motives rather than a genuine pursuit of justice, constituted a violation of his right to equal protection under the law.
He denied making any misrepresentations to the ministry of lands and emphasized that he had no intention to deceive or cause harm.
“He neither made any misrepresentation personally nor in common purpose with anyone to Ministry of Lands, Agriculture, Water, Fisheries and Rural Development, he never haboured any intention to deceive the said Ministry nor did he ever realize that there was real risk or possibility of deceiving it or to cause the Ministry to act upon any such alleged misrepresentation to the prejudice of the Ministry.
“He denies ever making any misrepresentation to the Ministry of Lands, Agriculture, Water, Fisheries and Rural Development in any tender documents.
“He never made any representations to the effect that a company called Blackdeck Livestock Poultry and Farming was a registered company in Zimbabwe with a valid Tax Clearance Certificate and a valid NSSA compliance certificate,” argued Dzvetero.
Chimombe, represented by lawyer Ashiel Mugiya, also asserted his innocence, stating that he had no involvement with the company Blackdeck and was unaware of the alleged forged documents or the fraudulent contract.
He argued that the doctrine of common purpose, invoked by the state to attach liability to him, was inapplicable in the circumstances.
“Under the doctrine of common purpose it is not enough to simply allege in state papers both charge shit and summary of the state case that both accused person in connivance did this.
“It must be clear from the onset what each accused person did, it must be clear that the footprints of each and one of them can be ascertained from the whole crime scene or plot and it must be made clear that each accused person was aware of what the other one was doing in order to achieve their common objective.
“It is only under these circumstances that the doctrine can be applied,” argued Mugiya.
Lovemore Madhuku, who is taking instructions from Mugiya, raised concerns about the composition of the bench, arguing that the mandatory age limit for judges should also apply to assessors in such a significant criminal trial.
“We cannot go into a trial before a thing which is not a court. We certainly wish to challenge the composition of the bench.
“We will only plead so that we can start. But we take the view that in terms of the Constitution the position that the mandatory age of the judge should be 70. If it applies to judge it surely applies to assessors.
“This is an important criminal trial and it should start correctly,” said Madhuku.
The High Court is expected to address the constitutional issues raised by the accused before determining whether the trial should proceed or be referred to the Constitutional Court.