By A Correspondent| Harare Regional Magistrate Don Ndirowei has acquitted former Zimbabwe National Road Administration Chief Executive Officer Matheline Mujokoro after she successfully applied for exception citing use of a repealed law.

Mujokoro was accused of flouting procurement procedures relating to the hiring of two security companies by the road authority.

Through her lawyer Admire Rubaya, Mujokoro applied for exception to the charge, arguing that she was being charged in terms of a repealed law.

It was argued that the offence alleged to have been committed on September 7 2018 when Mujokoro allegedly extended the contract for security services without the approval of the Procurement Regulatory Authority was not lawful.

Her lawyer argued that the regulations which promulgated the obligation in question were repealed and replaced by Statutory Instrument 5 of 2018 with effect from January 18 2018 meaning the offence was allegedly committed about eight (8) months after the repeal of the regulations which created the obligation to get approval through the review by the State Procurement Board.

It was argued that after the repeal, there was no duty that was supposed to be followed by Mujokoro in completed procurement proceedings as that duty had lapsed with the repeal of the regulations eight months prior to the date the allegations are alleged to have arisen.

He argued that the criminal charge under the circumstances was bad at law as it disclose no offence and that the court cannot be clothed with powers to ammend the law which it does not have.

“The criminal charges are under the circumstances is bad in law. No offence is disclosed. What is however, clear is that these criminal proceedings are in effect meant to resuscitate the law which is no longer in force consequent to an effective repeal,” Rubaya argued.

“There is no duty cast on a public officer or any other person to comply with the provisions of a repealed enactment unless the replacing enactment specifically says so.There cannot be abuse of a non-existing duty if one has regards that if a provision of the law is repealed it means that it no longer exists at law,” he added.

The defence further said charging and prosecuting a suspect with repealed law infringed on their rights as the constitution does not allow the law to be applied in retrospect.

“Reference is made to sections 70[1][i] and 70[1][k] of the constitution of the republic which clearly sets out that an accused person cannot be convicted of an act which was not an offence when it allegedly happened and one cannot be convicted of an act which is no longer an offence.”By the same reasoning a public officer cannot be prosecuted for criminally abusing a statutory duty in circumstances where the duty was only part of a repealed enactment.”he further argued.

The defence further argued that the State is not authorised to resurrect a law to prosecute a suspect.

“The State has no legal capacity to resuscitate provisions of a repealed law for purposes of prosecuting an accused person for an alleged offending misconduct which it alleged to have been committed way after the repeal of the enactment which is being relied on to form the gravamen of the charge of abuse of duty as a public officer,” Rubaya submitted.

Regional magistrate Don Ndirowei agreed with argument stating that the State cannot resuscitate a repealed law to prosecute Mujokoro.

“I’m persuaded by Mr Rubaya’s submission that the operation of procurement regulations ended on the 18th of January when SI5/2018 came into force on 19th of January 2018. In the circumstances, the provisions of section 26 (1) of the Procurement Regulations ceased to have effect on the date of repeal,” the court said.The court further ruled that there cannot be a duty a person can be said to have violated using a repealed law.”

I therefore agree with the defence’s submission that no duty could be said to have accrued to the Accused person on the basis of a repealed Statutory Instrument whose effect was not extended to after the repeal date.

“Therefore, in the absence of the Statutory duty as on the 7th of September 2018 in terms of section 26 (1) of the Procurement Regulations, 2012 which had already been repealed, there cannot be an abuse of duty as a public officer. There is no duty cast on a public officer or any other person to comply with the provisions of a repealed enactment unless the replacing enactment specifically says so,” the court ruled.

“This court associates itself in the reasoning above. It is therefore clear from the foregoing that the exception taken by the accused person cannot be said to be lacking merit,” the magistrate added.

With the defence having also tendered a plea of not guilty, the magistrate said Mujokoro was entitled to a verdict before declaring her not guilty and acquitted.