Back to Index
State v Elton Mangoma MP, Minister of Energy and Power Development
- Court Watch 5/2011
December 16, 2011
State Prosecutions Against the Minister of Energy and Power Development
These were high-profile
cases which ended in defeat for the prosecution. The State acted
swiftly in the first case, and the second case seemed to be added
as an afterthought, taking up a comparatively stale incident from
well back in 2010. Was it a case of targeting a MDC-T Minister?
Hon Elton Mangoma, the MDC-T Deputy Treasurer-General and MP for
Makoni North, and a distinguished senior member of the accountancy
profession, has been the Minister of Energy and Power Development
in the inclusive
government since 24th June 2010. Before that he was Minister
of Economic Planning and Investment Promotion. He has from the beginning
been one of the MDC-T’s negotiators in the ongoing GPA
negotiations. The police and the Attorney-General’s office
brought two criminal cases against him this year, both involving
serious allegations of abuse of his office as Minister in relation
to procurement of goods.
v Hon Elton Mangoma - Abuse of Office Charges
No 1: The Diesel Tender Case
Arrest: On 10th
March Mr Mangoma, was arrested
by three plain clothes police at his government offices at Chaminuka
Building and detained overnight at Braeside Police Station. He was
charged with contravening section 174 of the Criminal Law Code,
the accusation being that he had unlawfully abused his office as
Minister of Energy and Power Development in January by ordering
his subordinates to procure five million litres of diesel from a
South African company, NOOA Petroleum, without following tender
procedures prescribed by law and that his purpose had been to “show
favour to” the company. Section 174 criminalises abuse of
office “for the purpose of showing favour or disfavour to
any person”. The maximum penalty for this offence is a fine
of up to $3000 dollars or imprisonment not exceeding 15 years or
both a fine and imprisonment.
Mr Mangoma’s lawyer lodged a bail application with the High
Court and on 15th March Justice Kudya granted bail and took the
opportunity to describe the state’s case as being “weak”.
Bail was set at $5000 and Mr Mangoma was ordered to surrender his
passport, to continue residing at his given residential address,
to report to police once a week and not to interfere with state
witnesses. Mr Mangoma was released on bail on 16th March. He was
detained for a total of six days. The trial date was set down for
After his release,
Mr Mangoma described his arrest as malicious, saying that he had
explained the actions he had taken to procure diesel, in Cabinet
on 1st March and to President Mugabe on 3rd March, to everyone’s
satisfaction. He said he had acted entirely lawfully, in the national
interest in an emergency situation.
The Trial: Before
Mr Mangoma’s trial even started he was put back
in custody, having been arrested on 25th March on a second charge
and remanded in custody to face another trial in July [see below].
The trial based on the first charge started as scheduled on 28th
March and Mr Mangoma pleaded not guilty. The State had lined up
six witnesses to testify against him. These included his Ministry’s
Permanent Secretary Justin Mupamhanga, and other witnesses from
the Ministry, fuel importers and the State Procurement Board. The
Permanent Secretary was the first witness called. The trial was
set to continue the next day but in an ironic twist, Mr. Mangoma
– still in custody on the other charge [see below] –
was not brought to court from remand prison because the prisons
department had no fuel. Prison officials turned down offers by Mr
Mangoma’s lawyer to provide fuel. When proceedings resumed
on 30th March the defence cross-examined the Permanent Secretary,
and weaknesses in the State’s case were made glaringly obvious.
In subsequent hearings, spread at wide intervals over the next two
months, the witnesses who followed the Permanent Secretary into
the witness box all failed to substantiate the State’s claims
of wrongdoing by Mr Mangoma. At the close of the State case on 8th
June the defence applied for Mr Mangoma’s discharge.
First case ends
in acquittal: The trial ended on 28th June, when Justice Bhunu discharged
and acquitted Hon. Mangoma at the close of the State case. This
meant the defence was not even called on to present any evidence
in Mr Mangoma’s defence. Discharge at the close of the State
case is only granted when the State has failed to produce any evidence
at all justifying a conviction. The judge said the State had failed
to establish a prima facie case upon which a reasonable court might
convict. The State witnesses had acknowledged that there had been
a state of fuel emergency at the relevant time – a critical
shortage of diesel fuel with no local suppliers able to help. A
Procurement Act provision permits non-tender procurement procedures
in time of emergency. This, said the judge, had legally justified
the Minister’s emergency directive to by-pass normal tender
procedures. The judge also expressed amazement that the State officials
concerned had been ignorant of the Procurement Act provision for
No 2: The Electricity Meters Tender Case
Arrest: On 25th
March, only a few days before Mr Mangoma’s first trial on
the diesel tender charges was due to start, he was again arrested,
on fresh allegations of criminal abuse of duty as a public officer
contrary to section 174 of the Criminal Law Code. This arrest took
place at his home. He was taken before a magistrate, indicted [ordered
to stand trial in the High Court] for trial commencing on 18th July,
and remanded in custody. The allegation was that in 2010 he had
instructed the cancellation of a tender involving the purchase and
supply of a prepayment revenue management system, meters and associated
equipment for ZESA just as the winner of the tender was about to
be announced, and that this had been done for the purpose of showing
disfavour to the tendering companies.
Mr Mangoma’s second arrest and incarceration coincided with
important political processes going on in Parliament.
On 10th March the Supreme Court had unseated
the Speaker of the House Assembly, Mr Lovemore Moyo, necessitating
the election of a Speaker by members of the House and the fielding
of rival ZANU-PF and MDC-T candidates for the post. Mr Mangoma,
in custody on this new allegation, was not able to attend the election
which was held on 29th March, effectively decreasing MDC’s
voting strength in Parliament. In the event the MDC-T candidate,
Mr Lovemore Moyo, won the election anyway.]
Mr Mangoma’s lawyer lodged a bail application on 29th March.
Justice Omerjee granted Mr Mangoma $5000 bail and ordered that the
same bail conditions imposed by Justice Kudya should be maintained,
with the only addition being that Mr Mangoma should surrender the
title deeds to his house. The State prosecutor had not totally opposed
bail, but had asked for a condition that Mr Mangoma be barred from
reporting for duty as the Minister of Energy and Power Development
until the case was finalised, arguing that such a condition was
needed to prevent the Minister from interfering with State witnesses.
The judge granted bail without that condition.
The State invoked
section 121(3) of the Criminal
Procedure and Evidence Act, thereby giving itself 7 days within
which to appeal against the bail decision while Mr Mangoma remained
in prison. The State then applied for the High Court’s leave
to appeal to the Supreme Court against Justice Omerjee’s decision.
On 4th April Justice Musakwa threw out this application and ordered
Mr Mangoma’s immediate release. [This decision came too late
to enable Mr Mangoma, who is also a GPA negotiator for MDC-T, to
attend an important negotiators’ meeting that took place that
Mr Mangoma found
himself once again at liberty, but still on trial in the first case
against him – the diesel procurement case, and now facing
a second High Court trial – the electricity meters tender
case, scheduled for 18th July.
The State withdrew
the charge in the second case before the trial: Mr Mangoma’s
defence outline to the second charge was, as required by law, filed
before the trial was due to start. It asserted that he had acted
lawfully and in the public interest in stopping an exercise that
would have resulted in a bad deal, not only for ZESA itself, which
would have had to find a substantial sum, but also in unnecessary
expense for ZESA customers. On 18th July, when the court assembled,
prosecutor Chris Mutangadura told the court that the State wished
to withdraw the case. Without going into detail he said: “The
State wishes to withdraw charges in this matter. The basis upon
which we prepared the charge was substantially similar to the facts
in the previous charge. In the light of the judgment by Justice
Bhunu we are hamstrung. The only option available for the prosecution
is to withdraw the charges.” With the experience of the first
trial behind it, and faced by Mr Mangoma’s defence outline,
and with some of the same State witnesses lined up to give evidence,
the prosecution had obviously come to the conclusion that it had
no hope of countering Mr Mangoma’s defence.
accepted the withdrawal and the judge accordingly discharged Mr
Kept in Deplorable Conditions
Mr Mangoma was
kept in deplorable conditions at the remand prison while confined
there after his second arrest. Extraordinarily, he was classified
as a “class D” prisoner, that is, a highly dangerous
criminal deemed to be a security threat. He would have found himself
confined in an overcrowded and dirty cell with other inmates classified
as dangerous. When Mr Mangoma was brought into the courtroom on
28th March he was shivering and shackled in handcuffs and leg irons.
These were only removed after his lawyer protested and requested
the leg irons and handcuffs be removed.
of Minister Mangoma’s Arrest and Detention
- For the
Ministry of Energy and Power Development – Mr Mangoma’s
Ministry plays a particularly important role in Zimbabwe’s
economic revival strategy, embracing the vital fuel and power
sectors. His two spells in custody kept him from his desk for
a total of 16 days.
- For the
MDC-T in Parliament – Mr Mangoma’s enforced absence
from the House of Assembly deprived the party of his vote during
that period. Every vote was potentially crucial at the time, given
that elections for the Speaker’s post were taking place,
but in the event his absence did not prevent his party’s
candidate, Mr Lovemore Moyo, from being re-elected Speaker.
- For his
constituency – a busy Minister finds it difficult enough
at the best of times to attend to the needs of his constituents.
Absence while in custody and the pressure of a high-profile criminal
trial and related court proceeds must have handicapped Mr Mangoma
- As a negotiator
for the Global Political Agreement – Mr Mangoma was not
available for some important meetings that took place during his
incarceration and trial.
arrest and detention is extremely stressful and prison conditions
a danger to health, as well as being an intolerable ordeal for
- Were Mr
Mangoma’s arrests spurious and/or politically motivated?
As his first arrest had been predicted by ZANU-PF insiders and
as some local fuel suppliers are considered ZANU-PF-aligned, it
is not surprising that in the present polarised political environment
the State’s heavy-handed actions against Mr Mangoma provoked
claims by Mr Mangoma’s party and many others that the charges
against him were trumped-up and politically motivated. And the
State’s signal failure to secure a conviction has not inspired
confidence in the police and prosecution’s understanding
of their responsibilities.
- Why was
Mr Mangoma brought into court in legirons?
- Was thwarting
bail for a leading Minister and GPA negotiator justified? Was
the State’s use of section 121(3) of the Criminal Procedure
and Evidence Act against Mr Mangoma remotely defensible?
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.