The trial for MDC-Alliance principal, Tendai Biti, who is facing charges of inciting violence could not kick off as he made an application for the lead prosecutor to step down on the basis that he was in violation of the constitution as he was not professional.
Biti through his lawyers, Beatrice Mtetwa, Alec Muchadehama and Jeremiah Bhamu, indicated that lead prosecutor in the matter, Michael Reza was not fit to lead the prosecuting team as he is not independent and is partisan.
“Section 260 of the constitution indicates that an officer of the National Prosecuting Authority (NPA) must be independent and not subject to the direction or control of anyone; and must exercise his or her functions impartially and without fear, favour, prejudice or bias.
“Your worship, Section 261 of that same constitution further indicates that an officer of the NPA must not act in a partisan manner,. further the interests of any political party or cause, prejudice the lawful interests of any political party or cause and must not violate the fundamental rights or freedoms of any person.
“Reza who in terms of the law is supposed to be impartial filed the only opposing affidavit in a matter in which the accused was making an application at the High Court.
“In that application he accused the accused person of inciting violence on August 1. He in fact accused him of killing those six people even when there is the Commission of Enquiry looking into it and the accused has not been formally charged of any of those charges, already he has taken a stance that the accused is already guilty even without a trial.
In his response, Reza challenged the allegations made by the defence indicating that he was impartial and non-partisan as he executed his duties within the confines of the constitution at all times.
He also indicated that he did not attack the character of Biti as cited in the application but rather he attacked the character that was being portrayed in that affidavit he had responded to.
Harare Magistrate Gloria Takundwa is set to make a ruling on the matter on November 15.
Biti has however been implicated in the August 1 violent clashes by a witness who testified before the commission of inquiry.
He was arrested at the Zambian border post after he tried to cross into the neighbouring country seeking asylum claiming he was running away from persecution by the state security.
Biti told the court that his mother, brother and nephew were harassed by unidentified men who went to his mother’s house looking for him. He claimed that gunshots were fired at his brother when he was on his way to Bindura in the company of his minor children.
Biti said on August 2, there was an attempt on his life by unidentified people driving unmarked vehicles.
He is out on $5 000 bail which was granted by Harare magistrate Francis Mapfumo.
Biti is also facing charges of contravening Section 66A(1) of the Electoral Act Chapter 2:13, which prohibits the unofficial or false declaration of election results.
He is alleged to have unlawfully declared opposition party leader Mr Nelson Chamisa as the winner of the presidential elections on July 30.
The Zimbabwean law states that only the Zimbabwe Electoral Commission (ZEC) chairperson is empowered to declare the winner of an election. Tafadzwa Mupariwa is appearing on behalf of the State alongside Reza.