He said his client could only be charged for obstructing the course of justice.
“If the officer-in-charge complied with a lawful order, then he had a complete defence to any charge of misconduct or criminal charge that he could face for releasing the two,” the lawyer said.
“But if the officer-in-charge avails himself of the defence of complying with an illegal order, still Mphoko would not be guilty of any offence since he was not a member of a disciplined force to give command,” Magwaliba added.
After filing the application for exception, Magwaliba asked the court for time to have a record of the proceedings transcribed before the State could orally respond to his application, saying he needed to note facts that are in the record for a response from the State’s submission.
However, prosecutor Michael Reza elected to respond to Mphoko’s application by February 27 before Mujaya delivers his ruling on March 4.
Mphoko is facing a charge of criminal abuse of office after he, on July 14, 2016, allegedly instructed police officers at Avondale Police Station in Harare to release two Zinara officials from holding cells without following procedure while he was Acting President.
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