NYARUWATA v THE STATE (SC 10 of 2026) [2023] ZWSC 73 (10 January 2023)

Judgment No. SC 10/26 Civil Appeal No. SC 231/21 9 REPORTABLE (10) LAWYERS NYARUWATA v THE STATE COURT MARTIAL APPEAL COURT OF ZIMBABWE MAVANGIRA JA, KUDYA JA & MUSAKWA JA HARARE: 10 JANUARY 2023 D. Sheshe, for the appellant, pro amico No appearance for the respondent MAVANGIRA JA: This is an appeal against the whole judgment of the General Court Martial (the court a quo) held at 1 Commando on 18 December, 2019 under case number CTM 85/2019, which found the appellant guilty of criminal abuse of duty as a public officer and sentenced him as follows: “1. Casheering (sic) from the ZDF (Zimbabwe Defence Forces) with ignominy with effect from 18 December 2019. 5 years imprisonment.” After hearing the parties, the Court, sitting as a Court Martial Appeal Court, dismissed the appeal in its entirety. The following are the reasons therefor. FACTUAL BACKGROUND The appellant was a commissioned officer in the Zimbabwe Defence Forces serving with 2 Engineers Squadron. At the material time he was the Officer Commanding 2 Engineers Squadron. He was charged with criminal abuse of duty as a public officer in terms para 39 (2) (a) of the First Schedule to the Defence Act [Chapter 11:02] (the Defence Act), as read with s 174 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (the Criminal Law Code). In summary, the allegation in the charge sheet was that sometime during the period between September 2017 and November 2017, whilst employed as a public officer, the appellant unlawfully, intentionally and without authority, withdrew troops from secondment at Rusununguko High School, Mudzi Constituency and at Gozi Primary School, Wedza Constituency, where they had been deployed to construct school blocks and Teachers’ Quarters respectively. The secondment was done under a Military Aid to Civil Society programme. The Mudzi and Wedza Constituencies were at the relevant time under Members of Parliament (MPs), Mr Jonathan Samukange and Mr D. Musabayana, respectively. The said withdrawal of troops from secondment was done by the appellant without authorisation from Command Headquarters. The appellant had been instructed to deploy the troops on a Military Aid to Civil Society programme, under which the troops were to undertake the mentioned construction for the two constituencies. It was alleged that during this period, the appellant solicited money from the respective Members of Parliament for the said two constituencies, receiving some of it through his CABS bank account number 1002806216, Ecocash transfers and hard cash. He used all the money for his personal gain. The funds were allegedly used, among other things, to purchase a personal vehicle and to pay his daughter’s fees at the University of Zimbabwe. He further, without authority, made the two MPs pay trade test fees for some of his troops. The appellant allegedly continued unlawfully and intentionally demanding gifts from the two MPs who eventually refused to honour his further demands as a result of which the appellant, in his individual capacity and without authority, reacted by withdrawing the said troops from the secondment, thereby showing disfavor to the MPs and the communities which had lawful authority to have the assistance of military engineers. The withdrawal of troops by the appellant was done as a way to arm-twist and force the two MPs to continue giving him gifts and money. This conduct by the appellant was contrary to his duties as an Officer of the Zimbabwe Defence Forces. The motor vehicle that he bought for himself, a Honda CRV registration number ACT 6463 was subsequently confiscated by the State and taken as an exhibit. None of the monies demanded from and paid by the two MPs were recovered. The appellant pleaded not guilty to the charge preferred against him. He entered a special plea of prescription in relation to the allegations concerning the purchase of the vehicle and the payment of his daughter’s university fees. The appellant argued that the issue of the alleged donations had prescribed, noting that in terms of s 46 (4) of the Defence Act, no case may be tried after three years from the date the offence is committed. It was the appellant’s submission that the issue of receiving gifts allegedly happened on or before 20 September 2016. He further submitted that, in accordance with s 30 (1) of the Defence Forces Courts Martial Procedure Regulations of 1956, the court a quo lacked jurisdiction to hear the matter due to the lapse of time. The court a quo ruled in the appellant’s favour, holding that the allegations concerning the demand and receipt of money from the Honourable Members of Parliament had indeed prescribed. The State then proceeded to address the issue concerning the appellant’s removal of troops from secondment without authorisation. The State’s case consisted of evidence from eight witnesses. Key among them was Honourable D. Musabayana, then Member of Parliament for Wedza Constituency. The witness confirmed that the appellant had requested money from him, stating that the funds were intended to assist the troops with their trade test. He further stated that, upon realizing that the money was intended for the appellant’s personal use, he stopped sending the appellant any funds. According to the witness, the appellant then threatened to withdraw the troops from the constituency. The witness further stated that when he later visited the site with food for the troops, he found that they had left a week earlier. He submitted that there was no fixed time frame for the deployment of the troops, as their availability depended on the presence of building materials. He stated that the withdrawals occurred while materials were still on site. After speaking with the Commander, the witness realised that the appellant had falsely claimed that there were no building materials. The State also called Sergeant Babvu, who served under the appellant during the secondment. He testified that when the troops were withdrawn, the building materials had already begun to diminish. He further stated that the troops had used one of the MP’s vehicles to effect the withdrawal. The witness added that the withdrawal orders had been given verbally. The State also led evidence from Lieutenant Colonel KG Manhimanzi. The witness stated that withdrawal orders could only be issued by the Commander and that troops could not be withdrawn in the absence of such an order. The State also called other public officers who had worked under the appellant. They confirmed that the appellant had communicated that the withdrawal of the troops was due to a shortage of building materials. The witnesses further testified that the troops left the site to enable some of them to prepare for their trade test practical examinations. They also stated that when they left the sites, there was no other building material except cement. The State further led evidence from Honourable Samkange, the then MP for Mudzi South Constituency. He testified that he had given the appellant money, which the appellant used to purchase his personal vehicle and to pay his daughter’s university fees. The witness further stated that he had also assisted in paying fees for the troops’ trade tests. When the appellant’s financial demands became increasingly persistent, he stopped sending him money. The appellant then threatened to withdraw the troops if he did not comply. The witness later discovered that the troops had indeed been withdrawn from the project. The witness, together with Honourable Musabayana, subsequently approached the Brigadier General and reported the appellant’s conduct. Brigadier General, Mhonda, gave evidence to the fact that he had given the order for the withdrawal of the troops. However, the witnesses testified that he later found out through the MPs that the appellant had solicited money from them, part of which he allegedly used for personal purposes. When the MPs refused further payments, he threatened to, and did thereafter, withdraw troops from the deployment without proper authorization, falsely claiming a shortage of building materials. The withdrawals disrupted the school construction projects. The witness confirmed that troop redeployment could only be authorised by the Commander and the appellant misled him into making the order of withdrawal of the troops. He further submitted that he would not have sanctioned the withdrawals had he known that the appellant was doing so because the two MPs had refused to give him more money. In his defence regarding the unauthorised withdrawal of troops, the appellant stated that the troops were withdrawn because they were due to write their trade tests and there were no materials at the sites where they were working. He further claimed that, at all material times, the Commander had authorised the withdrawal and had even provided resources to facilitate it. The appellant further submitted that, although he was absent at the time of withdrawal, he had communicated the order to withdraw the troops after receiving photographs from them indicating that there were no longer any building materials on site. The appellant denied demanding money from the two Honourable MPs, stating that his interactions with them arose from working together and developing a rapport which led to discussions on family matters and politics. He explained that the MPs, being lawmakers, were well-versed in the law and he relied on their guidance. According to the appellant, any assistance received from them was given and accepted in good faith and out of sympathy, rather than as a result of any improper demand. It was the appellant’s submission that the MPs were requesting more help from the troops, which was not part of the initial agreement. The court a quo held that although the appellant had obtained authority to withdraw the troops from the constituencies, that authority was granted on the basis of misinformation communicated by him to the Commander, namely that there were no building materials on site. The court found that the appellant exploited the deployment of troops and the assistance rendered by the Zimbabwe Defence Forces to communities as leverage for his own personal gain. He abused his office by threatening the Honourable MPs with the withdrawal of troops if his demands for monetary benefits were not met. Although the appellant had received verbal orders for the deployment from the then Commander of 2 Brigade, he was required to issue his own written orders for the deployment of his troops. The court also held that the appellant had not been honest in his dealings, as he failed to appraise the Commander of the gifts he had received from the two Honourable MPs. Accordingly, the court concluded that the appellant’s conduct was contrary to his duties. The court a quo found the appellant guilty of abuse of duty as a public officer as charged. In passing sentence, the court a quo noted that offences of this nature are increasingly prevalent within the Zimbabwe National Army, thereby creating need for a deterrent sentence. It also noted that the appellant did not demonstrate any remorse for his conduct. Furthermore, he was not a first offender and had become a liability to the ZNA. The court observed that the appellant’s conduct violated army ethics and was tantamount to tarnishing the good image of the ZNA. The appellant was therefore sentenced as set out in para 1 above. THIS APPEAL Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds of appeal: AS AGAINST CONVICTION 1. The court a quo erred on the point of law in finding the appellant guilty of the offence he was charged with of abuse of duty as a public officer by unlawfully and intentionally withdrawing troops without authority from Commander 2 Brigade when it had been satisfied that appellant had authority to withdraw troops and made that findings as a matter of fact. 2. The court a quo erred on a point of law in finding the appellant guilty of the offence charged based on the findings that the appellant misstated facts to procure authority to withdraw troops yet the allegations upon which he was charged of the offence related specifically to him unlawfully and intentionally withdrawing troops without authority from Commander. 3. The court a quo erred and misdirected itself on the law and in assessing evidence by finding the appellant guilty of having misstated facts to procure authority to withdraw troops disregarding evidence from witnesses that justified the withdrawal of the troops which showed appellant did not in any way mislead or misstate facts. 4. A fortiori, the court a quo seriously misdirected itself in finding that the appellant ought to have produced written orders for the deployment of troops yet it was not his duty but that of the Commander and in any event such a finding had no relation to the charge appellant was facing. 5. The trial court erred in making a finding that the appellant had acted dishonestly in failing to disclose issue of gifts to the Commander yet evidence had been adduced through State witnesses that appellant was under no obligation to disclose personal gifts but those offered to Zimbabwe National Army by well-wishers. AS AGAINST SENTENCE 1. The General Court Martial grossly erred on the law in failing to consider as it should have, to suspend part of the sentence against the devastating effect of a term of imprisonment. 2. In the face of a long service of 33 years to the force where he obtained merit medals and other mitigating factors proffered, the court a quo erred in failing to find that an effective term of imprisonment for 5 years, was unduly harsh as to induce a sense of shock. 3. The court a quo misdirected on the law in ordering forfeiture of a motor vehicle allegedly bought from donations given to appellant yet it had not only ruled itself to lack jurisdiction to entertain charge pertaining to donation as it had prescribed and evidence had been adduced that appellant had also used his own funds to purchase the vehicle. The appellant sought the following relief: 1. That the instant appeal succeeds with costs. 2. That the whole judgment of the court a quo which is the subject of this appeal is set aside in its entirety and is substituted with the following: 1. Appellant’s appeal succeeds. 2. The judgment of the General Court Martial in the matter of The State v Lawyers Nyaruwata under case number CTM 85/19 dated 18 December 2019 is set aside in its entirety and substituted with the following: “In the result the accused is found NOT GUILTY of the crime of contravening para 39 (2) (a) of the First Schedule to the Defence Act as read with s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and is therefore acquitted. ALTERNATIVELY The appeal against conviction fails and is dismissed. The appeal against sentence succeeds, with the result that the sentence imposed on the appellant is set aside and, in its place, the following is substituted: ‘The accused is therefore sentenced to imprisonment of 18 months, wholly suspended on condition that accused does not commit any offence involving dishonesty or abuse of duty as a public authority,’” SUBMISSIONS ON THE MERITS Mr Sheshe, for the appellant submitted that the Commander’s evidence during the trial to the effect that he had given the appellant the authority to withdraw the troops but that in doing so he had been misled by the appellant that building materials had run out, meant that the charge preferred against the appellant could not stand. He highlighted s 56 of the Defence Act which provides as follows: “56 Law to be observed by courts martial Except as is otherwise provided by this Act, the law which shall be observed in the trial of any charge before a court martial as to- the onus of proof; and the sufficiency or admissibility of evidence; and the competency, compellability, examination and cross-examination of witnesses; and any matter of procedure; shall be the law in force in criminal proceedings in the civil courts.” Counsel also submitted that the appellant’s charge was to the effect that he had unlawfully and intentionally withdrawn troops without authorisation from the Commander. The mens rea for the charge was the intentional and unlawful withdrawal of troops. Counsel averred that the court a quo acknowledged that the appellant had authority to withdraw the troops and this was confirmed by some of the State witnesses. Counsel also argued that some State witnesses testified to the effect that they had withdrawn from the site because building materials had run out. He also submitted that the Commander had testified that the appellant had the requisite authority, although it was obtained through misrepresentation made to him by the appellant. Counsel submitted that, going by the standard of proof required in criminal matters, the court a quo erred in finding the appellant guilty as he had authority to withdraw the troops. It was Mr Sheshe’s submission that the sting of the charge having been withdrawal of troops without authorisation, the charge was negated by the evidence of authorisation having been given by the Commander. The court questioned counsel on whether the appellant had acted within the confines of his duty as a public officer. Counsel’s answer was that the appellant had acted within the confines of his duty as he had the requisite authority to withdraw troops. On the issue of sentence, the Court invited submissions from counsel on the effect of s 80 (4) of the Defence Act, which provides that, even if an accused person appeals against conviction and sentence, the sentence imposed by the court martial continues to operate and must be carried out, except where the sentence is death. Counsel conceded that this Court can not interfere with the sentence of the court a quo. Counsel therefore abandoned the appeal against sentence. ISSUES FOR DETERMINATION The sole issue for determination before this Court is whether or not the court a quo erred in convicting the appellant of criminal abuse of duty as a public officer. APPLICATION OF THE LAW TO THE FACTS Whether or not the court a quo erred in convicting the appellant of criminal abuse of duty as a public officer. The appellant contends, principally, that he acted within the scope of his authority as a public officer when he withdrew troops from the deployment, asserting that he had obtained permission from the Commander. He therefore argued that the court a quo erred in convicting him. The appellant was charged with and convicted of criminal abuse of duty as a public officer, an offence that is committed when a public officer, in the exercise or purported exercise of his functions, intentionally acts contrary to or inconsistent with his duties for the purpose of showing favour or disfavour or for personal gain. The appellant was convicted under s 174 of the Criminal Law Code which provides as follows: “174 Criminal abuse of duty as public officer (1) If a public officer, in the exercise of his or her functions as such, intentionally (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.” In Undenge v The State SC 23 /21 at p 7, this Court defined criminal abuse of duty by a public officer as follows: “Professor G Feltoe in his book A Guide to the Zimbabwean Criminal Law, 3rd Ed Legal Resources Foundation, 2004, sets out the elements of criminal abuse of duty by a public officer as follows: ‘Ingredients [s 174 (1)] A public officer, in the exercise of his or her functions as such, intentionally - does anything that is contrary to or inconsistent with his or her duty as a public officer; or omits to do anything which it is his or her duty as a public officer to do for the purpose of showing favour or disfavour to any person.’ (Emphasis added) From these elements, it can be noted that the crime is centered on a public officer's exercise of duties. If a public officer acts contrary to his duties in order to show favour or disfavour to any person, he would have abused his office, for purposes of s174 (1) of the Code. The only exception is where favour or disfavour is made in furtherance of a government policy aimed at the advancement of persons historically disadvantaged by discriminatory laws or practices. See s 174 (3) of the Code. The word “intentionally” means that the conduct constituting abuse must be deliberate, calculated or purposeful and 'abuse' connotes misuse, exploitation, taking advantage and recklessness in that conduct. (See The State v Taranhike & Ors HH 222/18).”’ The offence is therefore constituted upon the satisfaction of three fundamental elements, namely: that the accused occupied the status or office of a public officer at the material time; he performed an act, or omitted to perform an act, in a manner that was contrary to or inconsistent with the obligations inherent in his office; and such conduct was undertaken knowingly and for an improper purpose, including the pursuit of personal benefit or the conferral of undue advantage or causing disadvantage. In Taranhike & Ors v The State HH 222/18 at pp 10-11, the court held as follows: “Public abuse of office impacts on the public’s trust and confidence in public institutions. It can also have financial consequences. As one author, John Hatchard puts it: ‘The offence is essentially a support for integrity and good governance on the basis that those who are entrusted with state power must act for the public good. Whilst many of the reported cases involve police officers, the offence applies generally to officials in the public service, local government and, arguably those in the private sector providing public functions’ It has also been explained thus: ‘The essence of the crime of misconduct of public office is either wilfully neglecting to carry out the public duty entrusted to you, or wilfully abusing it for some improper end.’ The offence of criminal abuse of duty as a public officer is clearly defined in our code. The provision is described as re-enacting and expanding upon the previous s 4 of the Prevention of Corruption Act. Historically neglect of duty, bribery and extortion were at the core of abuse of public office. Furthermore, crimes such as bribery, extortion, theft and fraud which may also speak factually to various situations that involve public officers are separate offences in the code. Criminal abuse of duty as a public officer is defined as follows. “174 Criminal abuse of duty as public officer (1) If a public officer, in the exercise of his or her functions as such, intentionally (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both. (2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.” To be guilty of abuse of public office, what can be gleaned from the above is that: One must be a public officer Must have engaged in conduct that is inconsistent with duty as public officer Must act intentionally in the act of omission or commission The purpose of the conduct must be to show favour or disfavour to any one person The definition of public officer, as captured in our Code, is as follows: “public officer” means (a) a Vice-President, Minister or Deputy Minister; or (b) a governor appointed in terms of an Act referred to in s 111A of the Constitution; or (c) a member of a council, board, committee or other authority which is a statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or local authority; or (d) a person holding or acting in a paid office in the service of the State, a statutory body or a local authority; or (e) a judicial officer.” Undoubtedly, the appellant fell squarely within the definition of a public officer for purposes of the offence. At the material time, he served as “a Public Officer, OC 2 Engrs Sqn” (Public Officer, Officer Commanding 2 Engineers Squadron) within the Zimbabwe National Army, an institution that forms an integral component of the State and whose members perform public functions on behalf of the State. His position vested in him statutory, regulatory and command responsibilities, including the supervision, deployment, and welfare of troops assigned to public programmes such as the Military Aid to Civil Society initiative. As an Officer Commanding, the appellant exercised delegated sovereign authority. He was entrusted with public resources, both human and material and was obliged to discharge his functions with integrity, transparency and strict adherence to military and administrative protocols. His duties were not personal or discretionary; they were public in nature and carried out in the name of and for the benefit of the State. Having found that the appellant was a public officer, the next question would be whether he acted inconsistently with the obligations of his office. To satisfy this element, it must be demonstrated that the appellant performed an act, or failed to perform an act, in a manner that was inconsistent with the obligations arising from his office. In the present matter, the evidence before the court a quo amply demonstrated that the appellant’s actions represented a fundamental departure from the standards of conduct expected of a public officer. His decision to withdraw the troops, purportedly on the basis of depleted materials or the need to prepare for trade tests, was taken unilaterally and without adherence to required military procedure. Critically, he obtained the Commander’s verbal approval only after misrepresenting material facts. The evidence revealed that the appellant informed the Commander that there were no building materials left at the deployment sites, thereby justifying the withdrawal of troops. However, it emerged from the testimony of both the Commander and the Honourable MPs that building materials were, in fact, still available on the ground. After it was established that the appellant had misrepresented the facts and was soliciting for money from the MPs and was subsequently arrested, the projects continued and were completed as planned. This evidence directly contradicted the appellant’s assertions and demonstrated that his communication to the Commander was inconsistent with the true operational circumstances. This further confirmed that the withdrawal had been unnecessary. Having obtained the Commander’s verbal approval only after misrepresenting material facts, the authority that he procured on the basis of that falsehood was no authority at all. Compounding the appellant’s misconduct, he admitted that he was not physically present at the sites when the withdrawals were executed. Instead, he allegedly relied solely on photographs sent by certain troop members purporting to show that no materials remained. Such photographs were never placed before the court a quo. Furthermore, the appellant’s threats to withdraw the troops when the MPs refused to meet his escalating monetary demands represented a clear diversion of public resources away from their lawful purpose and towards a personal objective. This alone constituted a serious breach of his duties, as it subordinated institutional and community interests to his own personal gain. In these circumstances, the court a quo was correct in concluding that the appellant’s conduct was plainly contrary to and inconsistent with the duties of his office as required by the offence. The third element, being intent for personal gain, was overwhelmingly proved before the court a quo. The evidence of the Honourable Musabayana, MP and Honourable Samkange, MP showed that: the appellant solicited money from them, he used some of the funds for the purchase of a personal vehicle and for his daughter’s university fees, and he threatened to withdraw the troops when his demands could no longer be met. The withdrawal of troops was therefore not operationally motivated, but instead served as a form of pressure to extract personal benefits. This amounted to a classic use of public power for private gain, which lies at the core of criminal abuse of office. The appellant’s assertion that the payments were gestures of sympathy or goodwill is wholly inconsistent with the repeated demands, the threats issued and the reactive withdrawal of troops once payments ceased. The court a quo properly applied the law and the evidence fully supports the conviction. In light of the foregoing, we found that the appeal lacked merit and accordingly dismissed it. KUDYA JA : I agree MUSAKWA JA : I agree Masiya-Sheshe & Associates, appellant’s legal practitioners Judgment No. SC 10/26 Civil Appeal No. SC 231/21 9 Judgment No. SC 10/26 Civil Appeal No. SC 231/21 9 REPORTABLE (10) LAWYERS NYARUWATA v THE STATE COURT MARTIAL APPEAL COURT OF ZIMBABWE MAVANGIRA JA, KUDYA JA & MUSAKWA JA HARARE: 10 JANUARY 2023 D. Sheshe, for the appellant, pro amico No appearance for the respondent MAVANGIRA JA: This is an appeal against the whole judgment of the General Court Martial (the court a quo) held at 1 Commando on 18 December, 2019 under case number CTM 85/2019, which found the appellant guilty of criminal abuse of duty as a public officer and sentenced him as follows: “1. Casheering (sic) from the ZDF (Zimbabwe Defence Forces) with ignominy with effect from 18 December 2019. 5 years imprisonment.” After hearing the parties, the Court, sitting as a Court Martial Appeal Court, dismissed the appeal in its entirety. The following are the reasons therefor. FACTUAL BACKGROUND The appellant was a commissioned officer in the Zimbabwe Defence Forces serving with 2 Engineers Squadron. At the material time he was the Officer Commanding 2 Engineers Squadron. He was charged with criminal abuse of duty as a public officer in terms para 39 (2) (a) of the First Schedule to the Defence Act [Chapter 11:02] (the Defence Act), as read with s 174 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (the Criminal Law Code). In summary, the allegation in the charge sheet was that sometime during the period between September 2017 and November 2017, whilst employed as a public officer, the appellant unlawfully, intentionally and without authority, withdrew troops from secondment at Rusununguko High School, Mudzi Constituency and at Gozi Primary School, Wedza Constituency, where they had been deployed to construct school blocks and Teachers’ Quarters respectively. The secondment was done under a Military Aid to Civil Society programme. The Mudzi and Wedza Constituencies were at the relevant time under Members of Parliament (MPs), Mr Jonathan Samukange and Mr D. Musabayana, respectively. The said withdrawal of troops from secondment was done by the appellant without authorisation from Command Headquarters. The appellant had been instructed to deploy the troops on a Military Aid to Civil Society programme, under which the troops were to undertake the mentioned construction for the two constituencies. It was alleged that during this period, the appellant solicited money from the respective Members of Parliament for the said two constituencies, receiving some of it through his CABS bank account number 1002806216, Ecocash transfers and hard cash. He used all the money for his personal gain. The funds were allegedly used, among other things, to purchase a personal vehicle and to pay his daughter’s fees at the University of Zimbabwe. He further, without authority, made the two MPs pay trade test fees for some of his troops. The appellant allegedly continued unlawfully and intentionally demanding gifts from the two MPs who eventually refused to honour his further demands as a result of which the appellant, in his individual capacity and without authority, reacted by withdrawing the said troops from the secondment, thereby showing disfavor to the MPs and the communities which had lawful authority to have the assistance of military engineers. The withdrawal of troops by the appellant was done as a way to arm-twist and force the two MPs to continue giving him gifts and money. This conduct by the appellant was contrary to his duties as an Officer of the Zimbabwe Defence Forces. The motor vehicle that he bought for himself, a Honda CRV registration number ACT 6463 was subsequently confiscated by the State and taken as an exhibit. None of the monies demanded from and paid by the two MPs were recovered. The appellant pleaded not guilty to the charge preferred against him. He entered a special plea of prescription in relation to the allegations concerning the purchase of the vehicle and the payment of his daughter’s university fees. The appellant argued that the issue of the alleged donations had prescribed, noting that in terms of s 46 (4) of the Defence Act, no case may be tried after three years from the date the offence is committed. It was the appellant’s submission that the issue of receiving gifts allegedly happened on or before 20 September 2016. He further submitted that, in accordance with s 30 (1) of the Defence Forces Courts Martial Procedure Regulations of 1956, the court a quo lacked jurisdiction to hear the matter due to the lapse of time. The court a quo ruled in the appellant’s favour, holding that the allegations concerning the demand and receipt of money from the Honourable Members of Parliament had indeed prescribed. The State then proceeded to address the issue concerning the appellant’s removal of troops from secondment without authorisation. The State’s case consisted of evidence from eight witnesses. Key among them was Honourable D. Musabayana, then Member of Parliament for Wedza Constituency. The witness confirmed that the appellant had requested money from him, stating that the funds were intended to assist the troops with their trade test. He further stated that, upon realizing that the money was intended for the appellant’s personal use, he stopped sending the appellant any funds. According to the witness, the appellant then threatened to withdraw the troops from the constituency. The witness further stated that when he later visited the site with food for the troops, he found that they had left a week earlier. He submitted that there was no fixed time frame for the deployment of the troops, as their availability depended on the presence of building materials. He stated that the withdrawals occurred while materials were still on site. After speaking with the Commander, the witness realised that the appellant had falsely claimed that there were no building materials. The State also called Sergeant Babvu, who served under the appellant during the secondment. He testified that when the troops were withdrawn, the building materials had already begun to diminish. He further stated that the troops had used one of the MP’s vehicles to effect the withdrawal. The witness added that the withdrawal orders had been given verbally. The State also led evidence from Lieutenant Colonel KG Manhimanzi. The witness stated that withdrawal orders could only be issued by the Commander and that troops could not be withdrawn in the absence of such an order. The State also called other public officers who had worked under the appellant. They confirmed that the appellant had communicated that the withdrawal of the troops was due to a shortage of building materials. The witnesses further testified that the troops left the site to enable some of them to prepare for their trade test practical examinations. They also stated that when they left the sites, there was no other building material except cement. The State further led evidence from Honourable Samkange, the then MP for Mudzi South Constituency. He testified that he had given the appellant money, which the appellant used to purchase his personal vehicle and to pay his daughter’s university fees. The witness further stated that he had also assisted in paying fees for the troops’ trade tests. When the appellant’s financial demands became increasingly persistent, he stopped sending him money. The appellant then threatened to withdraw the troops if he did not comply. The witness later discovered that the troops had indeed been withdrawn from the project. The witness, together with Honourable Musabayana, subsequently approached the Brigadier General and reported the appellant’s conduct. Brigadier General, Mhonda, gave evidence to the fact that he had given the order for the withdrawal of the troops. However, the witnesses testified that he later found out through the MPs that the appellant had solicited money from them, part of which he allegedly used for personal purposes. When the MPs refused further payments, he threatened to, and did thereafter, withdraw troops from the deployment without proper authorization, falsely claiming a shortage of building materials. The withdrawals disrupted the school construction projects. The witness confirmed that troop redeployment could only be authorised by the Commander and the appellant misled him into making the order of withdrawal of the troops. He further submitted that he would not have sanctioned the withdrawals had he known that the appellant was doing so because the two MPs had refused to give him more money. In his defence regarding the unauthorised withdrawal of troops, the appellant stated that the troops were withdrawn because they were due to write their trade tests and there were no materials at the sites where they were working. He further claimed that, at all material times, the Commander had authorised the withdrawal and had even provided resources to facilitate it. The appellant further submitted that, although he was absent at the time of withdrawal, he had communicated the order to withdraw the troops after receiving photographs from them indicating that there were no longer any building materials on site. The appellant denied demanding money from the two Honourable MPs, stating that his interactions with them arose from working together and developing a rapport which led to discussions on family matters and politics. He explained that the MPs, being lawmakers, were well-versed in the law and he relied on their guidance. According to the appellant, any assistance received from them was given and accepted in good faith and out of sympathy, rather than as a result of any improper demand. It was the appellant’s submission that the MPs were requesting more help from the troops, which was not part of the initial agreement. The court a quo held that although the appellant had obtained authority to withdraw the troops from the constituencies, that authority was granted on the basis of misinformation communicated by him to the Commander, namely that there were no building materials on site. The court found that the appellant exploited the deployment of troops and the assistance rendered by the Zimbabwe Defence Forces to communities as leverage for his own personal gain. He abused his office by threatening the Honourable MPs with the withdrawal of troops if his demands for monetary benefits were not met. Although the appellant had received verbal orders for the deployment from the then Commander of 2 Brigade, he was required to issue his own written orders for the deployment of his troops. The court also held that the appellant had not been honest in his dealings, as he failed to appraise the Commander of the gifts he had received from the two Honourable MPs. Accordingly, the court concluded that the appellant’s conduct was contrary to his duties. The court a quo found the appellant guilty of abuse of duty as a public officer as charged. In passing sentence, the court a quo noted that offences of this nature are increasingly prevalent within the Zimbabwe National Army, thereby creating need for a deterrent sentence. It also noted that the appellant did not demonstrate any remorse for his conduct. Furthermore, he was not a first offender and had become a liability to the ZNA. The court observed that the appellant’s conduct violated army ethics and was tantamount to tarnishing the good image of the ZNA. The appellant was therefore sentenced as set out in para 1 above. THIS APPEAL Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds of appeal: AS AGAINST CONVICTION 1. The court a quo erred on the point of law in finding the appellant guilty of the offence he was charged with of abuse of duty as a public officer by unlawfully and intentionally withdrawing troops without authority from Commander 2 Brigade when it had been satisfied that appellant had authority to withdraw troops and made that findings as a matter of fact. 2. The court a quo erred on a point of law in finding the appellant guilty of the offence charged based on the findings that the appellant misstated facts to procure authority to withdraw troops yet the allegations upon which he was charged of the offence related specifically to him unlawfully and intentionally withdrawing troops without authority from Commander. 3. The court a quo erred and misdirected itself on the law and in assessing evidence by finding the appellant guilty of having misstated facts to procure authority to withdraw troops disregarding evidence from witnesses that justified the withdrawal of the troops which showed appellant did not in any way mislead or misstate facts. 4. A fortiori, the court a quo seriously misdirected itself in finding that the appellant ought to have produced written orders for the deployment of troops yet it was not his duty but that of the Commander and in any event such a finding had no relation to the charge appellant was facing. 5. The trial court erred in making a finding that the appellant had acted dishonestly in failing to disclose issue of gifts to the Commander yet evidence had been adduced through State witnesses that appellant was under no obligation to disclose personal gifts but those offered to Zimbabwe National Army by well-wishers. AS AGAINST SENTENCE 1. The General Court Martial grossly erred on the law in failing to consider as it should have, to suspend part of the sentence against the devastating effect of a term of imprisonment. 2. In the face of a long service of 33 years to the force where he obtained merit medals and other mitigating factors proffered, the court a quo erred in failing to find that an effective term of imprisonment for 5 years, was unduly harsh as to induce a sense of shock. 3. The court a quo misdirected on the law in ordering forfeiture of a motor vehicle allegedly bought from donations given to appellant yet it had not only ruled itself to lack jurisdiction to entertain charge pertaining to donation as it had prescribed and evidence had been adduced that appellant had also used his own funds to purchase the vehicle. The appellant sought the following relief: 1. That the instant appeal succeeds with costs. 2. That the whole judgment of the court a quo which is the subject of this appeal is set aside in its entirety and is substituted with the following: 1. Appellant’s appeal succeeds. 2. The judgment of the General Court Martial in the matter of The State v Lawyers Nyaruwata under case number CTM 85/19 dated 18 December 2019 is set aside in its entirety and substituted with the following: “In the result the accused is found NOT GUILTY of the crime of contravening para 39 (2) (a) of the First Schedule to the Defence Act as read with s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and is therefore acquitted. ALTERNATIVELY The appeal against conviction fails and is dismissed. The appeal against sentence succeeds, with the result that the sentence imposed on the appellant is set aside and, in its place, the following is substituted: ‘The accused is therefore sentenced to imprisonment of 18 months, wholly suspended on condition that accused does not commit any offence involving dishonesty or abuse of duty as a public authority,’” SUBMISSIONS ON THE MERITS Mr Sheshe, for the appellant submitted that the Commander’s evidence during the trial to the effect that he had given the appellant the authority to withdraw the troops but that in doing so he had been misled by the appellant that building materials had run out, meant that the charge preferred against the appellant could not stand. He highlighted s 56 of the Defence Act which provides as follows: “56 Law to be observed by courts martial Except as is otherwise provided by this Act, the law which shall be observed in the trial of any charge before a court martial as to- the onus of proof; and the sufficiency or admissibility of evidence; and the competency, compellability, examination and cross-examination of witnesses; and any matter of procedure; shall be the law in force in criminal proceedings in the civil courts.” Counsel also submitted that the appellant’s charge was to the effect that he had unlawfully and intentionally withdrawn troops without authorisation from the Commander. The mens rea for the charge was the intentional and unlawful withdrawal of troops. Counsel averred that the court a quo acknowledged that the appellant had authority to withdraw the troops and this was confirmed by some of the State witnesses. Counsel also argued that some State witnesses testified to the effect that they had withdrawn from the site because building materials had run out. He also submitted that the Commander had testified that the appellant had the requisite authority, although it was obtained through misrepresentation made to him by the appellant. Counsel submitted that, going by the standard of proof required in criminal matters, the court a quo erred in finding the appellant guilty as he had authority to withdraw the troops. It was Mr Sheshe’s submission that the sting of the charge having been withdrawal of troops without authorisation, the charge was negated by the evidence of authorisation having been given by the Commander. The court questioned counsel on whether the appellant had acted within the confines of his duty as a public officer. Counsel’s answer was that the appellant had acted within the confines of his duty as he had the requisite authority to withdraw troops. On the issue of sentence, the Court invited submissions from counsel on the effect of s 80 (4) of the Defence Act, which provides that, even if an accused person appeals against conviction and sentence, the sentence imposed by the court martial continues to operate and must be carried out, except where the sentence is death. Counsel conceded that this Court can not interfere with the sentence of the court a quo. Counsel therefore abandoned the appeal against sentence. ISSUES FOR DETERMINATION The sole issue for determination before this Court is whether or not the court a quo erred in convicting the appellant of criminal abuse of duty as a public officer. APPLICATION OF THE LAW TO THE FACTS Whether or not the court a quo erred in convicting the appellant of criminal abuse of duty as a public officer. The appellant contends, principally, that he acted within the scope of his authority as a public officer when he withdrew troops from the deployment, asserting that he had obtained permission from the Commander. He therefore argued that the court a quo erred in convicting him. The appellant was charged with and convicted of criminal abuse of duty as a public officer, an offence that is committed when a public officer, in the exercise or purported exercise of his functions, intentionally acts contrary to or inconsistent with his duties for the purpose of showing favour or disfavour or for personal gain. The appellant was convicted under s 174 of the Criminal Law Code which provides as follows: “174 Criminal abuse of duty as public officer (1) If a public officer, in the exercise of his or her functions as such, intentionally (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.” In Undenge v The State SC 23 /21 at p 7, this Court defined criminal abuse of duty by a public officer as follows: “Professor G Feltoe in his book A Guide to the Zimbabwean Criminal Law, 3rd Ed Legal Resources Foundation, 2004, sets out the elements of criminal abuse of duty by a public officer as follows: ‘Ingredients [s 174 (1)] A public officer, in the exercise of his or her functions as such, intentionally - does anything that is contrary to or inconsistent with his or her duty as a public officer; or omits to do anything which it is his or her duty as a public officer to do for the purpose of showing favour or disfavour to any person.’ (Emphasis added) From these elements, it can be noted that the crime is centered on a public officer's exercise of duties. If a public officer acts contrary to his duties in order to show favour or disfavour to any person, he would have abused his office, for purposes of s174 (1) of the Code. The only exception is where favour or disfavour is made in furtherance of a government policy aimed at the advancement of persons historically disadvantaged by discriminatory laws or practices. See s 174 (3) of the Code. The word “intentionally” means that the conduct constituting abuse must be deliberate, calculated or purposeful and 'abuse' connotes misuse, exploitation, taking advantage and recklessness in that conduct. (See The State v Taranhike & Ors HH 222/18).”’ The offence is therefore constituted upon the satisfaction of three fundamental elements, namely: that the accused occupied the status or office of a public officer at the material time; he performed an act, or omitted to perform an act, in a manner that was contrary to or inconsistent with the obligations inherent in his office; and such conduct was undertaken knowingly and for an improper purpose, including the pursuit of personal benefit or the conferral of undue advantage or causing disadvantage. In Taranhike & Ors v The State HH 222/18 at pp 10-11, the court held as follows: “Public abuse of office impacts on the public’s trust and confidence in public institutions. It can also have financial consequences. As one author, John Hatchard puts it: ‘The offence is essentially a support for integrity and good governance on the basis that those who are entrusted with state power must act for the public good. Whilst many of the reported cases involve police officers, the offence applies generally to officials in the public service, local government and, arguably those in the private sector providing public functions’ It has also been explained thus: ‘The essence of the crime of misconduct of public office is either wilfully neglecting to carry out the public duty entrusted to you, or wilfully abusing it for some improper end.’ The offence of criminal abuse of duty as a public officer is clearly defined in our code. The provision is described as re-enacting and expanding upon the previous s 4 of the Prevention of Corruption Act. Historically neglect of duty, bribery and extortion were at the core of abuse of public office. Furthermore, crimes such as bribery, extortion, theft and fraud which may also speak factually to various situations that involve public officers are separate offences in the code. Criminal abuse of duty as a public officer is defined as follows. “174 Criminal abuse of duty as public officer (1) If a public officer, in the exercise of his or her functions as such, intentionally (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both. (2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.” To be guilty of abuse of public office, what can be gleaned from the above is that: One must be a public officer Must have engaged in conduct that is inconsistent with duty as public officer Must act intentionally in the act of omission or commission The purpose of the conduct must be to show favour or disfavour to any one person The definition of public officer, as captured in our Code, is as follows: “public officer” means (a) a Vice-President, Minister or Deputy Minister; or (b) a governor appointed in terms of an Act referred to in s 111A of the Constitution; or (c) a member of a council, board, committee or other authority which is a statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or local authority; or (d) a person holding or acting in a paid office in the service of the State, a statutory body or a local authority; or (e) a judicial officer.” Undoubtedly, the appellant fell squarely within the definition of a public officer for purposes of the offence. At the material time, he served as “a Public Officer, OC 2 Engrs Sqn” (Public Officer, Officer Commanding 2 Engineers Squadron) within the Zimbabwe National Army, an institution that forms an integral component of the State and whose members perform public functions on behalf of the State. His position vested in him statutory, regulatory and command responsibilities, including the supervision, deployment, and welfare of troops assigned to public programmes such as the Military Aid to Civil Society initiative. As an Officer Commanding, the appellant exercised delegated sovereign authority. He was entrusted with public resources, both human and material and was obliged to discharge his functions with integrity, transparency and strict adherence to military and administrative protocols. His duties were not personal or discretionary; they were public in nature and carried out in the name of and for the benefit of the State. Having found that the appellant was a public officer, the next question would be whether he acted inconsistently with the obligations of his office. To satisfy this element, it must be demonstrated that the appellant performed an act, or failed to perform an act, in a manner that was inconsistent with the obligations arising from his office. In the present matter, the evidence before the court a quo amply demonstrated that the appellant’s actions represented a fundamental departure from the standards of conduct expected of a public officer. His decision to withdraw the troops, purportedly on the basis of depleted materials or the need to prepare for trade tests, was taken unilaterally and without adherence to required military procedure. Critically, he obtained the Commander’s verbal approval only after misrepresenting material facts. The evidence revealed that the appellant informed the Commander that there were no building materials left at the deployment sites, thereby justifying the withdrawal of troops. However, it emerged from the testimony of both the Commander and the Honourable MPs that building materials were, in fact, still available on the ground. After it was established that the appellant had misrepresented the facts and was soliciting for money from the MPs and was subsequently arrested, the projects continued and were completed as planned. This evidence directly contradicted the appellant’s assertions and demonstrated that his communication to the Commander was inconsistent with the true operational circumstances. This further confirmed that the withdrawal had been unnecessary. Having obtained the Commander’s verbal approval only after misrepresenting material facts, the authority that he procured on the basis of that falsehood was no authority at all. Compounding the appellant’s misconduct, he admitted that he was not physically present at the sites when the withdrawals were executed. Instead, he allegedly relied solely on photographs sent by certain troop members purporting to show that no materials remained. Such photographs were never placed before the court a quo. Furthermore, the appellant’s threats to withdraw the troops when the MPs refused to meet his escalating monetary demands represented a clear diversion of public resources away from their lawful purpose and towards a personal objective. This alone constituted a serious breach of his duties, as it subordinated institutional and community interests to his own personal gain. In these circumstances, the court a quo was correct in concluding that the appellant’s conduct was plainly contrary to and inconsistent with the duties of his office as required by the offence. The third element, being intent for personal gain, was overwhelmingly proved before the court a quo. The evidence of the Honourable Musabayana, MP and Honourable Samkange, MP showed that: the appellant solicited money from them, he used some of the funds for the purchase of a personal vehicle and for his daughter’s university fees, and he threatened to withdraw the troops when his demands could no longer be met. The withdrawal of troops was therefore not operationally motivated, but instead served as a form of pressure to extract personal benefits. This amounted to a classic use of public power for private gain, which lies at the core of criminal abuse of office. The appellant’s assertion that the payments were gestures of sympathy or goodwill is wholly inconsistent with the repeated demands, the threats issued and the reactive withdrawal of troops once payments ceased. The court a quo properly applied the law and the evidence fully supports the conviction. In light of the foregoing, we found that the appeal lacked merit and accordingly dismissed it. KUDYA JA : I agree MUSAKWA JA : I agree Masiya-Sheshe & Associates, appellant’s legal practitioners