GOSPEL artist, Ivy Kombo and her husband, Admire Kasi, have challenged the summoning of a High Court judge as a State witness midway during their trial, arguing that the prosecution was acting illegally.
The pair faces fraud charges after they allegedly acquired certificates through illegal means to practice law in Zimbabwe.
Through their lawyers, Admire Rubaya and Everson Chatambudza, the couple challenged the State's application to call the evidence of a High Court judge, Justice Slyvia Chirau-Mugomba arguing that this was unfair and tantamount to persecution.
The State's application was lodged by the District Public Prosecutor Tafara Chirambira, who recently took over the case from a junior prosecutor.
The prosecutor made the application after invoking its powers per provisions of section 232 of the Criminal Procedure and Evidence Act (CPEA).
Mugomba is the chairperson of the Council for Legal Education (CLE), the source of the alleged crime.
Rubaya protested stating that the defence was not served when the trial commenced.
Challenging the application, Rubaya said it was unfair because they had not prepared their defence in line with this.
The State initially applied for the production of a document it claimed was an email allegedly sent from the third accused person, Huggins Duri.
"The alleged email document had not been served on the accused persons prior to the commencement of trial, but notwithstanding clear provisions of the law and the constitutional command the State's application was gratuitously granted to the grave prejudice of the accused persons.
"The first accused person has no choice but to conclude that the State wants to get the court's assistance to prove its case," he said.
Rubaya said the law does not allow an investigation and the prosecution of the same case to run concurrently.
"That is unacceptable as that is grossly prejudicial to the accused person.
"It is now apparent they are acting as if they are the only first cousins of the Honourable Court to the extent that whatever they ask for from the Court they have to get.
"Ordinarily in life, such conduct is mostly found in spoilt children who always cry to get whatever they want at all and any costs.
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"The State's overly rigid stance may potentially limit a comprehensive review of the case -- the State is effectively telling the accused persons that it is its way or no way - so long a conviction is achieved," said the lawyer.
Kombo and husband are denying the allegations.
It is their defence that they cannot be faulted because they, indeed, followed all legal processes.
Rubaya said it is their clients' considered view that the provision cited does not entitle a party to apply to the court for it to invoke its powers in terms of that provision.
"The understanding of the accused persons counsel is that the provision can only be used by the court on its own accord to call and/or recall witnesses not for a party to make an application inviting the court to exercise such special powers without statutory support, " he said.
Ruling on State's application will be handed down this Monday.
