Prominent Zimbabwean lawyer Thabani Mpofu was on Monday charged with defeating or obstructing the course of justice as defined in the Criminal Law (Codification and Reform) Act.
Mpofu is famed for representing MDC Alliance leader Nelson Chamisa in his legal challenge against President Emmerson Mnangagwa’s disputed and controversial 2018 presidential election victory.
It is the state’s case that Mpofu allegedly duplicated an affidavit which was filed as part of an application in the Constitutional Court by a Harare lawyer seeking to nullify the appointment of Kumbirai Hodzi as prosecutor-general (PG).
Police officers alleged that Mpofu connived with another lawyer, Joshua Chirambwe, in January 2019 upon realising that the initial application had failed and went on to file another application at the apex court containing duplicated information from that of the purported Simbarashe Zuze in a bid to stop further enquiry into the existence of Zuze, thereby defeating the judicial proceedings.
The state claims that Mpofu, who is represented by Beatrice Mtetwa and Ray Moyo, drafted an affidavit on behalf of Chirambwe to purport as if it had already been sworn before advocate Choice Damiso and filed it before the Constitutional Court challenging the appointment of Hodzi as prosecutor-general.
The law enforcement agents allege that the information and arguments contained in Chirambwe’s application were similar to the one which were in Zuze’s application, which was struck off the apex court’s roll after it was deemed abandoned.
In his application, Chirambwe argued that in appointing Hodzi as prosecutor-general, Mnangagwa failed to adhere to constitutional provisions and rejected consideration of qualified candidates without cause. He also argued that Mnangagwa had appointed a person who disqualified himself during the public interviews by announcing that he was not prepared to be independent but would take instructions from the executive.
Chirambwe argued that Hodzi was not fit for the top prosecutorial job, adding that his appointment, which was marred by controversy, must therefore be declared null and void.
“The interviews were conducted in full public glare. The fact that fifth respondent [Hodzi] had a torrid time is known to all who cared to follow that process. To me, it was clear that he had shown that he was clearly disqualified from being appointed to the position of PG.
“It was there for all to see. The commissioners scored him so badly (that) at the end of the day, he sat at the bottom of the pile. He was clearly and effectively out of the reckoning,” said Chirambwe in his founding affidavit.
In response, F Chimbari – representing President Mnangagwa and minister of justice, legal and parliamentary affairs Ziyambi Ziyambi – challenged the allegations and told the full bench that Chirambwe did not support his arguments with any evidence.
Chimbari also submitted that Mnangagwa had discretion to appoint a PG of his choice.
“The applicant must establish facts which establish failure to adhere to constitutional provisions by the first and fourth [Mnangagwa and Ziyambi]. This has not been done,” she said.
“The basis of the alleged failure is based in speculations. Criteria for rejecting a list is not set out in the constitution. Surely, the president cannot be called upon to give reasons why there was a second list when the constitution does not call for him to do so.”
Hodzi was one of the several candidates who took part in public interviews held in 2018 to select a fitting candidate to replace advocate Ray Goba, who was dismissed from his job in 2018.
Other lawyers who participated in the public interviews include former Harare West legislator Jessie Majome, Florence Ziyambi, Calvin Mantsebo, Tinomudaishe Chinyoka, Misheck Hogwe, justice Maphios Cheda, Wendy Chingeya, Edios Marondedza and Noria Mashumba.
According to a scoresheet prepared by Judicial Service Commission, Mantsebo, Chinyoka and Hogwe emerged as the top three, although Mnangagwa settled for Hodzi.
Mpofu becomes the latest lawyer to be charged with defeating or obstructing the course of justice after the arrest of Beatrice Mtetwa in 2013 on same charges. Currently, human rights lawyer Douglas Coltart is on trial for allegedly participating in an anti-government protest and for allegedly plotting to unseat Mnangagwa from power.
Meanwhile, the MDC Alliance in a statement said the crackdown on lawyers is part of the state’s repressive measures meant to undermine the rule of law and democracy.