COURT WATCH 5/2011
Two State Prosecutions Against the Minister of Energy and Power Development
These were high-profile cases which ended in defeat for the prosecution. The State acted swiftly in the first case, and the second case seemed to be added as an afterthought, taking up a comparatively stale incident from well back in 2010. Was it a case of targeting a MDC-T Minister? Hon Elton Mangoma, the MDC-T Deputy Treasurer-General and MP for Makoni North, and a distinguished senior member of the accountancy profession, has been the Minister of Energy and Power Development in the inclusive government since 24th June 2010. Before that he was Minister of Economic Planning and Investment Promotion. He has from the beginning been one of the MDC-T’s negotiators in the ongoing GPA negotiations. The police and the Attorney-General’s office brought two criminal cases against him this year, both involving serious allegations of abuse of his office as Minister in relation to procurement of goods.
State v Hon Elton Mangoma - Abuse of Office Charges
Case No 1: The Diesel Tender Case
Arrest: On 10th March Mr Mangoma, was arrested by three plain clothes police at his government offices at Chaminuka Building and detained overnight at Braeside Police Station. He was charged with contravening section 174 of the Criminal Law Code, the accusation being that he had unlawfully abused his office as Minister of Energy and Power Development in January by ordering his subordinates to procure five million litres of diesel from a South African company, NOOA Petroleum, without following tender procedures prescribed by law and that his purpose had been to “show favour to” the company. Section 174 criminalises abuse of office “for the purpose of showing favour or disfavour to any person”. The maximum penalty for this offence is a fine of up to $3000 dollars or imprisonment not exceeding 15 years or both a fine and imprisonment.
Bail application: Mr Mangoma’s lawyer lodged a bail application with the High Court and on 15th March Justice Kudya granted bail and took the opportunity to describe the state’s case as being “weak”. Bail was set at $5000 and Mr Mangoma was ordered to surrender his passport, to continue residing at his given residential address, to report to police once a week and not to interfere with state witnesses. Mr Mangoma was released on bail on 16th March. He was detained for a total of six days. The trial date was set down for 28th March.
After his release, Mr Mangoma described his arrest as malicious, saying that he had explained the actions he had taken to procure diesel, in Cabinet on 1st March and to President Mugabe on 3rd March, to everyone’s satisfaction. He said he had acted entirely lawfully, in the national interest in an emergency situation.
The Trial: Before Mr Mangoma’s trial even started he was put back in custody, having been arrested on 25th March on a second charge and remanded in custody to face another trial in July [see below]. The trial based on the first charge started as scheduled on 28th March and Mr Mangoma pleaded not guilty. The State had lined up six witnesses to testify against him. These included his Ministry’s Permanent Secretary Justin Mupamhanga, and other witnesses from the Ministry, fuel importers and the State Procurement Board. The Permanent Secretary was the first witness called. The trial was set to continue the next day but in an ironic twist, Mr. Mangoma – still in custody on the other charge [see below] – was not brought to court from remand prison because the prisons department had no fuel. Prison officials turned down offers by Mr Mangoma’s lawyer to provide fuel. When proceedings resumed on 30th March the defence cross-examined the Permanent Secretary, and weaknesses in the State’s case were made glaringly obvious. In subsequent hearings, spread at wide intervals over the next two months, the witnesses who followed the Permanent Secretary into the witness box all failed to substantiate the State’s claims of wrongdoing by Mr Mangoma. At the close of the State case on 8th June the defence applied for Mr Mangoma’s discharge.
First case ends in acquittal: The trial ended on 28th June, when Justice Bhunu discharged and acquitted Hon. Mangoma at the close of the State case. This meant the defence was not even called on to present any evidence in Mr Mangoma’s defence. Discharge at the close of the State case is only granted when the State has failed to produce any evidence at all justifying a conviction. The judge said the State had failed to establish a prima facie case upon which a reasonable court might convict. The State witnesses had acknowledged that there had been a state of fuel emergency at the relevant time – a critical shortage of diesel fuel with no local suppliers able to help. A Procurement Act provision permits non-tender procurement procedures in time of emergency. This, said the judge, had legally justified the Minister’s emergency directive to by-pass normal tender procedures. The judge also expressed amazement that the State officials concerned had been ignorant of the Procurement Act provision for emergencies.
Case No 2: The Electricity Meters Tender Case
Arrest: On 25th March, only a few days before Mr Mangoma’s first trial on the diesel tender charges was due to start, he was again arrested, on fresh allegations of criminal abuse of duty as a public officer contrary to section 174 of the Criminal Law Code. This arrest took place at his home. He was taken before a magistrate, indicted [ordered to stand trial in the High Court] for trial commencing on 18th July, and remanded in custody. The allegation was that in 2010 he had instructed the cancellation of a tender involving the purchase and supply of a prepayment revenue management system, meters and associated equipment for ZESA just as the winner of the tender was about to be announced, and that this had been done for the purpose of showing disfavour to the tendering companies.
[Interestingly, Mr Mangoma’s second arrest and incarceration coincided with important political processes going on in Parliament. On 10th March the Supreme Court had unseated the Speaker of the House Assembly, Mr Lovemore Moyo, necessitating the election of a Speaker by members of the House and the fielding of rival ZANU-PF and MDC-T candidates for the post. Mr Mangoma, in custody on this new allegation, was not able to attend the election which was held on 29th March, effectively decreasing MDC’s voting strength in Parliament. In the event the MDC-T candidate, Mr Lovemore Moyo, won the election anyway.]
Bail application: Mr Mangoma’s lawyer lodged a bail application on 29th March. Justice Omerjee granted Mr Mangoma $5000 bail and ordered that the same bail conditions imposed by Justice Kudya should be maintained, with the only addition being that Mr Mangoma should surrender the title deeds to his house. The State prosecutor had not totally opposed bail, but had asked for a condition that Mr Mangoma be barred from reporting for duty as the Minister of Energy and Power Development until the case was finalised, arguing that such a condition was needed to prevent the Minister from interfering with State witnesses. The judge granted bail without that condition.
The State invoked section 121(3) of the Criminal Procedure and Evidence Act, thereby giving itself 7 days within which to appeal against the bail decision while Mr Mangoma remained in prison. The State then applied for the High Court’s leave to appeal to the Supreme Court against Justice Omerjee’s decision. On 4th April Justice Musakwa threw out this application and ordered Mr Mangoma’s immediate release. [This decision came too late to enable Mr Mangoma, who is also a GPA negotiator for MDC-T, to attend an important negotiators’ meeting that took place that very day.]
Mr Mangoma found himself once again at liberty, but still on trial in the first case against him – the diesel procurement case, and now facing a second High Court trial – the electricity meters tender case, scheduled for 18th July.
The State withdrew the charge in the second case before the trial: Mr Mangoma’s defence outline to the second charge was, as required by law, filed before the trial was due to start. It asserted that he had acted lawfully and in the public interest in stopping an exercise that would have resulted in a bad deal, not only for ZESA itself, which would have had to find a substantial sum, but also in unnecessary expense for ZESA customers. On 18th July, when the court assembled, prosecutor Chris Mutangadura told the court that the State wished to withdraw the case. Without going into detail he said: “The State wishes to withdraw charges in this matter. The basis upon which we prepared the charge was substantially similar to the facts in the previous charge. In the light of the judgment by Justice Bhunu we are hamstrung. The only option available for the prosecution is to withdraw the charges.” With the experience of the first trial behind it, and faced by Mr Mangoma’s defence outline, and with some of the same State witnesses lined up to give evidence, the prosecution had obviously come to the conclusion that it had no hope of countering Mr Mangoma’s defence.
The defence accepted the withdrawal and the judge accordingly discharged Mr Mangoma.
Minister Kept in Deplorable Conditions
Mr Mangoma was kept in deplorable conditions at the remand prison while confined there after his second arrest. Extraordinarily, he was classified as a “class D” prisoner, that is, a highly dangerous criminal deemed to be a security threat. He would have found himself confined in an overcrowded and dirty cell with other inmates classified as dangerous. When Mr Mangoma was brought into the courtroom on 28th March he was shivering and shackled in handcuffs and leg irons. These were only removed after his lawyer protested and requested the leg irons and handcuffs be removed.
Implications of Minister Mangoma’s Arrest and Detention
- For the Ministry of Energy and Power Development – Mr Mangoma’s Ministry plays a particularly important role in Zimbabwe’s economic revival strategy, embracing the vital fuel and power sectors. His two spells in custody kept him from his desk for a total of 16 days.
- For the MDC-T in Parliament – Mr Mangoma’s enforced absence from the House of Assembly deprived the party of his vote during that period. Every vote was potentially crucial at the time, given that elections for the Speaker’s post were taking place, but in the event his absence did not prevent his party’s candidate, Mr Lovemore Moyo, from being re-elected Speaker.
- For his constituency – a busy Minister finds it difficult enough at the best of times to attend to the needs of his constituents. Absence while in custody and the pressure of a high-profile criminal trial and related court proceeds must have handicapped Mr Mangoma even further.
- As a negotiator for the Global Political Agreement – Mr Mangoma was not available for some important meetings that took place during his incarceration and trial.
- Personal: arrest and detention is extremely stressful and prison conditions a danger to health, as well as being an intolerable ordeal for the family.
- Were Mr Mangoma’s arrests spurious and/or politically motivated? As his first arrest had been predicted by ZANU-PF insiders and as some local fuel suppliers are considered ZANU-PF-aligned, it is not surprising that in the present polarised political environment the State’s heavy-handed actions against Mr Mangoma provoked claims by Mr Mangoma’s party and many others that the charges against him were trumped-up and politically motivated. And the State’s signal failure to secure a conviction has not inspired confidence in the police and prosecution’s understanding of their responsibilities.
- Why was Mr Mangoma brought into court in legirons?
- Was thwarting bail for a leading Minister and GPA negotiator justified? Was the State’s use of section 121(3) of the Criminal Procedure and Evidence Act against Mr Mangoma remotely defensible?
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