Mphoko is facing criminal abuse of office charges, where he allegedly unlawfully caused the release of former Zimbabwe National Road Administration (Zinara) officials from police custody in 2016 when he was Acting President.
The former VP, who is out on $1 000 bail following his arrest by the Zimbabwe Anti-Corruption Commission, had applied for exception to the charges at the Harare Magistrates Court.
In his ruling, magistrate Trynos Utahwashe said the right to fair trail was absolute in terms of section 186(3)( e) of the Constitution.
"All essential allegations to be proved by the State in order to sustain a guilty verdict must be contained in a charge sheet," Utahwashe said.
"The charge sheet must contain the relevant elements of the crime that has been omitted and the manner in which the offence was committed. The charge, therefore, should not be vague and too broad, but specific. Only then can an accused person be required to answer to the charge."
He concurred with Mphoko's lawyer, Zibusiso Ncube that the State could not completely charge any public officer in terms of section 174 of the Criminal Law (Codification and Reform) Act Chapter 9:23.
"I, therefore, would disagree that section 174 does not contain any definition of conduct that is unlawful for a public officer," he said.
The magistrate said the State made reference to section 106, which regulates the conduct of the VPs, ministers and deputy ministers in government, adding that the State could not, therefore, deny that the conduct alleged against Mphoko was defined in section 174 of the Criminal Law (Codification and Reform) Act, alone and, therefore, could not stand.
"If the conduct complained against the accused by the State is in subsection (2) of section 106 of the Constitution, the conduct must be alleged in the charge sheet...," Utahwashe ruled.
"The present charge omits the essential allegations of the conduct complained of by the State."
Mphoko faced an alternative charge of defeating or obstructing the course of justice.
Utahwashe said the charge sheet has to essentially name particular officers who were obstructed to do their work, and not generalise.
Charges were that on May 6, 2016, Zacc received a report of allegations of fraud and criminal abuse of office against Zinara officials. Investigations led to the arrest of Zinara acting chief executive Moses Juma and non-executive director Davison Norupiri and Mphoko ordered their release.
Mphoko's defence submitted that their client had no authority to issue orders to police officers as that was only reserved to the President and thus whatever he said at the police station on the day, did not constitute a lawful order to the officers.
Utahwashe ruled that whatever the accused said on the day became an order due to his position, upholding the exception and dismissing Mphoko's charges as vague and embarrassing.
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