THE trial of Prophetic Healing and Deliverance leader Prophet Walter Magaya who is facing multiple counts of rape at the Harare Magistrate’s Court will have to wait till July 31 owing to a review application filed at the High Court.

In his application, Magaya is challenging the State’s decision to prosecute on the six counts of rape citing a number of violations against his rights.

Magaya was in court this morning in which regional magistrate Francis Mapfumo dismissed his application for referral to the Constitutional Court and postponed the matter to July 31 pending the outcome of the review application.

Represented by Admire Rubaya and Everson Chatambudza, Magaya alleges misconduct by the prosecution in handling the matter involving one of the witnesses based in Ireland.

It is their argument that averments by Chief Director Director Tendai Shonhai that they amended the witnesses statement constitutes interference which violates his right to a fair trial.

Magaya argues that the prosecution descended into the arena by removing the professional cap all in a bid to have statements that suit their narrative in a bid to get a conviction.

“The decision to prosecute the applicant on the counts of the Ireland witness is founded on evidence that has been improperly shaped by the prosecutors themselves. The original statement that did not disclose the offence has been suppressed. The amendments have not been disclosed.

“The prosecutors have descended into the arena, abandoning their constitutional duty of impartiality. The applicant’s absolute right to a fair trial has been violated. They “amended” the statement to achieve a desired result. They were no longer ministers of justice; they became partisans in the pursuit of a conviction. This is grossly irregular. It vitiates the entire prosecution,” the lawyers argued.

Magaya is further challenging the State’s decision to prosecute him in the absence of DNA evidence. He said this is a violation of his right to fair trial.

It is his argument that the State’s suppression of the DNA evidence suggests they are not in favour of the State’s case.

“What is mind boggling is that the State has failed to disclose the results of the DNA analysis to the applicant and is prepared to proceed to trial without serving the Applicant with the scientific evidence that the State went to great lengths to obtain.

“The Applicant is being dragged to trial in the absence of evidence which was obtained from him and through his participation in compliance with an order of court. The suppression of DNA results is a flagrant violation of the applicant’s right to a fair trial.

“The only reasonable inference is that the results are unfavourable to the prosecution and are being suppressed. The decision to prosecute while withholding this evidence violates the applicant’s absolute right to a fair trial. By withholding the results, the respondents have disabled the applicant from making informed decisions about his defence. This is an incurable irregularity,” the lawyers argued.

Magaya has also taken an issue with the State by proceeding to prosecute him on matters in which two witnesses have withdrawn.

The lawyers argue that when a complainant withdraws a complaint, the evidential foundation of the charge collapses and to persist with the prosecution is irrational and oppressive.

“A decision to prosecute that has no evidential foundation, that is pursued in defiance of the wishes of the sole complainant, and that can only result in a charade of a trial, is not an exercise of lawful discretion. It is an abuse of process.

“The offence of rape is personal. The evidence of the complainant is indispensable. Without her testimony, there is no case.The evidence from the receiver of complaint is of no consequence in the absence of evidence from the complainant, more so in this case where there is no medical evidence.

“To prosecute a person on charges of rape when the complainants have withdrawn their complaints and do not wish to testify is, with respect, not a rational exercise of prosecutorial discretion. It is an act of oppression. The Respondents cannot seek to commence prosecution with impeachment of the complainant. If the Complainant is declared hostile in a rape matter, then what`s next? Why prosecute in the circumstances?”