ZANU PF activist Sybeth Musengezi is now a free man after a Harare magistrate acquitted him of fraud.
Musengezi was accused of misrepresenting his residential address to Zanu PF for personal gain.
He denied the charge, insisting that Zanu PF suffered no prejudice as a result of the alleged fraud.
The presiding magistrate, Dennis Mangosi, concurred and upheld his application for discharge at the close of the state’s case.
The magistrate said circumstances under which he became a member of Zanu PF were not issues of a criminal nature at all.
He said even the state assisted Musengezi with its evidence, which did not strengthen the case against him.
“These witnesses conceded that the cell sheets were unreliable sources of information.
“Thus, at the close of the state’s case, it is already clear that the state have failed to make out even a prima facie case that there was any misrepresentation made by the accused.
“Thus, at least one of the essential elements for the crime of fraud is missing.
“There is absolutely no evidence whatsoever that the accused provided the information about his address to Zanu PF.
“None of the state witnesses were present when the alleged misrepresentation took place and none of them even stated to whom the alleged misrepresentation was made,” said the magistrate.
The magistrate also noted that in its outline, the state alleged that the person to whom Musengezi made the misrepresentation was one Allan Chisuko.
“However, none of the witnesses even stated that to be the case (which in any event would be inadmissible hearsay evidence) and Mr Chisuko, himself, was never called as a witness despite the investigating officer confirming that he was interviewed by the police.
“Thus, an essential element of the offence was not proven, even on a prima facie basis, and therefore acquittal must follow.
“In fact, contrary to the state outline, all of the evidence tendered by the state actually demonstrates that it is highly likely that the accused’s defence is true, and that he did not provide the addresses in question.
“The state’s case rests entirely on the Zanu PF cell and branch sheets and on an assumption, which assumption is not backed by any evidence whatsoever, that it must have been the accused who provided the information contained therein.
“However, that assumption is contradicted by the evidence before the court.
“None of the state witnesses could give firsthand evidence about how any of the information contained in the Zanu PF cell and branch sheets had been collected as none were present.
“Therefore, none of the state witnesses could dispute the defence’s contention that the Zanu PF cell and branch sheet information is collected in a chaotic and haphazard manner, whereby information is routinely collected about people not in the presence,” said the magistrate.
Mangosi said even more catastrophically for the state’s case, the Zanu PF cell and branch sheets were proven to be full of errors relating to other members.
“Additionally, it is also common cause that the accused person was eligible to become a member of Zanu PF at the branch in question because:
“It is common cause he was working in that area in question at the time.
“It is common cause the Zanu PF constitution allows someone to become a member in the area where they work, not only in the area where they reside.
“This was admitted by all of the relevant witnesses, and this court already made such a finding in its bail ruling.”
Mangosi also said the fact that Musengezi was eligible to be a Zanu PF member at that branch is relevant for reasons tha he would not have had any motive to provide a false address to Zanu PF in order to become a member, if he could just as easily have provided a correct address and would still have been eligible.
“Since the accused could easily have provided a correct address (and still would have been eligible), his explanation that he did not provide the incorrect addresses and that they are merely an error in Zanu PF’s records becomes highly plausible.
“If the accused was eligible anyway to be a member of that branch of Zanu PF, then there can be no prejudice suffered because of an incorrect address appearing in the records since the correct address would have had him in the exact same branch of Zanu PF.
“The state totally failed to prove any prejudice to the complainant.
“Thus, another essential element of the offence was not established.
“Thus, it is respectfully submitted that as at the close of the state case, the state had not led evidence that would justify the placement of the accused on his defence and the court is obliged in terms of section 198(3) of the Criminal Procedure and Evidence Act, to return a verdict of not guilty at this stage,” he ruled.
Musengezi was being charged with fraud after he allegedly misrepresented his residential address to his political party, Zanu PF.
This was alleged to have happened in 2012.
His arrest came at a time he had mounted a case against President Emmerson Mnangagwa, who he alleged was an illegitimate leader.
Musengezi launched the Mnangagwa legitimacy challenge in 2021, arguing that he illegally took advantage of a military coup to that removed the then president Robert Mugabe in November 2017.
The activist said Mnangagwa was ushered into office following an unlawful special session of the central committee, which was convened by unknown people, including Patrick Chinamsa and Obert Mpofu in violation of the party’s constitution.
He accused the parties of taking advantage of the unfolding Operation Restore Legacy to topple Mugabe.
His lawyers said the police charges were an attempt to strip him of his Zanu PF membership and therefore his locus standi — one’s right, ability, or capacity to bring legal proceedings in a court of law.
They also argued that the allegations were not criminal charges and were fabricated to punish Musengezi for challenging Mnangagwa’s legitimacy.
“We consider the charges to be an abusive process and an appalling example of a police force that allows itself to be used by Zanu PF to silence dissenting voices, within Zanu PF itself,” said his lawyers.
“The issue raised in the fraud charges, regarding the address used on the forms by which Mr Musengezi became a member of Zanu PF, are not issues of a criminal nature at all. They are, in fact, issues for determination before the court in the civil case that Mr Musengezi has against the president challenging the president’s legitimacy as the leader of Zanu PF.”
Police said Musengezi’s claim that he lived at 4513 Hatcliffe Extension was an “unlawful misrepresentation” which “prejudiced Zanu PF to reputation and to good administration.”
The house allegedly belongs to one Allen Chisuko.
— STAFF WRITER.
