Tomana’s reign marred by scandalous decisions

Source: Tomana’s reign marred by scandalous decisions – The Zimbabwe Independent July 22, 2016

WHEN suspended Prosecutor-General (PG) Johannes Tomana (pictured) was appointed Attorney-General (AG) in December 2008 many in the legal fraternity saw this as a surprise move as he was neither a legal big hitter nor an eminent lawyer.

Bernard Mpofu

Unlike some of his predecessors who were highly respected and experienced top lawyers, Tomana was rather ordinary; an average or standard lawyer.

On appointment as AG, Tomana played the important prosecuting and government advisory roles. He assumed the prosecuting roles as PG in 2013 following the split in the functions of the AG’s office in line with the new constitution.

Many in the legal fraternity were therefore anxious to see if Tomana would discharge his duties and exercise his powers with integrity, independence, fairness and impartiality required by his office, given his calibre.
As it turned out his tenure has been uninspiring and scandal-ridden.

Early this month President Robert Mugabe suspended Tomana, who is now under investigation for abuse of office and corruption, practically bringing his tenure to an ignominious end.

A three-member tribunal chaired by retired judge Moses Chinhengo has been set up to investigate the allegations.

From the dubious handling of the Zupco corruption case more than a decade ago to the recent conviction of former advisor to the Reserve Bank of Zimbabwe governor, Munyaradzi Kereke, these are but some of the cases in which Tomana was criticised for his controversial approach bordering on negligence, incompetence and miscarriage of justice.

He has also made controversial remarks which drew the ire of the public.

Last year, he got engulfed in a storm of public outrage when he said girls as young as 12 can consent to sex. Yet probably his biggest blemish was his strenuous refusal to prosecute Kereke, who was sentenced to 14 years, but effectively jailed for 10 years two weeks ago after lawyer Charles Warara managed to get a certificate of private prosecution from the High Court, on allegations of raping a 11-year-old girl in 2010.

The conviction and jailing of Kereke for rape was not only celebrated as a victory for justice, but ushered in a new era of private prosecution in Zimbabwe. This pursuit of justice only came five years later when guardians of the minor whom Kereke raped had engaged Warara to use the route of private prosecution.

Warara made an application at the High Court in March 2012 seeking the AG’s Office to issue him a private prosecution certificate.

Tomana’s office opposed the application which was an indictment on his office.

In November 2012 the court ruled in Warara’s favour, but Tomana fought on even harder and appealed to the Supreme Court.

The Supreme Court upheld the High Court decision in 2014, prompting the PG’s office to approach the Constitutional Court (ConCourt) — showing Tomana was dead set against Kereke’s prosecution.

In November 2015 the ConCourt ordered Tomana to issue a private prosecution certificate to Warara, paving way for the trial.

Kereke only stood trial after six years given that the rape case was reported in 2010.

In 2011, global watchdog Transparency International carried out a study chronicling a “trail of questionable decisions” made by Tomana during his reign.

In 2004, former information and publicity deputy minister Bright Matonga was charged with corruption after he allegedly purchased buses from Scania, a South African-based company without authority from the Zupco board. At the time Matonga was Zupco’s chief executive.

Charges against him were, however, inexplicably dropped.

Tomana was also in the eye of a storm in 2009 when his office threw out corruption charges laid against then acting Bindura Hospital medical superintendent Beauty Basile. The allegations against Basile were that on 219 occasions between January 2006 and June 2008 she abused a government fuel facility by causing the sale or free issuance of 6 980 litres of petrol and diesel to undeserving hospital staff.

The state which listed then health secretary Edward Mabhiza as the complainant further alleged that during the same period Basile abused the Ministry of Health facility by causing the sale of or free issuance of 4 345 litres of diesel and 3 092 litres of petrol to non-hospital staff.

Basile’s trial commenced with the testimony of Mabhiza and thereafter government called seven other witnesses to testify. In a dramatic twist of events, the trial was brought to a premature end when on November 24 2009 Chief Law Officer in the AG’s Office Michael Mugabe wrote an internal memo to the prosecutor-in-charge of Harare Magistrate Court instructing him to stop the trial. Citing Section 9 of the Criminal Procedure and Evidence Act, Mugabe indicated that it was not in the best interests of the state to continue with the trial without further elaborating, notwithstanding the seriousness of the charges laid on Basile.

Tomana’s office raised eyebrows when it invoked Section 9 of the Criminal Procedure and Evidence Act which states that “the Attorney–General may at any time before conviction, stop any prosecution commenced by him or by any person charged with the prosecution of criminal cases but, if the accused has already pleaded to the charge, he shall be entitled to a verdict of acquittal in respect of that charge”.

Legal experts and critics argued that the decision by the AG to stop the criminal proceedings against Basile undermined the efforts of the Zimbabwe Anti-Corruption Commission and the police which collected evidence to weed out graft.

Owing to these cases and many others, there was sustained pressure from various quarters for Tomana to be removed for abuse of office until recently when he stepped on the toes of the powers that be on the Gushungo Dairy bombing affair, virtually sealing his fate.