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Mphoko yesterday applied for his case to be referred to the Constitutional Court (ConCourt) where he wants to argue that his rights are being trampled upon because he still has presidential immunity which protects him against prosecution.
Mphoko wants the highest court to rule on whether or not he was still entitled to presidential immunity as stipulated by section 98 of the Constitution.
Mphoko’s lawyer Advocate Tawanda Zhuwarara submitted that they wanted legal clarity so that the court could deal with facts.
“Whether presidential immunity as set out in section 98 of the Constitution extends to acts and or omissions by the Vice-President (and former Vice-President) who alleges and intends to prove that such acts or omissions during the discharge of his or her duties were actuated in accordance with section 99 of the Constitution,” Zhuwarara said.
However, the State, represented by Lovack Masuku, submitted that the court has to form an opinion as to whether the request is frivolous or not.
Masuku told the court that if the facts are not disputed, no issue would have arisen in the matter and the defence of good faith can be heard in the trial court not in the ConCourt.
The State argued that Mphoko’s request for referral does not raise an issue of fundamental human rights, therefore, the issue of immunity does not exist since he is now out of office.
But Zhuwarara insisted that his client was entitled to immunity.
“Whether the defence of good faith as enunciated in section 98 (4) of the Constitution is available to a Vice-President (and former Vice-President), who alleges and intends to prove that such acts and or omissions were actuated during the discharge of their duties in accordance of section 99 of the Constitution,” Zhuwarara said. Harare regional magistrate Hosea Mujaya will look at the matter.- newsday
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