Ziyambi loses private prosecution bid

Source: Ziyambi loses private prosecution bid | The Herald

Daniel Nemukuyu Senior Court Reporter

ACTING Prosecutor-General Advocate Ra0y Goba has washed his hands off the case in which his deputy Mrs Florence Ziyambi wants a top administrator in the office to be privately prosecuted for indecent assault and assault.Mrs Ziyambi, the national director of public prosecution and second-in charge at the National Prosecuting Authority, made a police report against the authority’s director for administration Colonel Solomon Siziba accusing him of indecently assaulting her in her office.

Col Siziba, a military personnel seconded to the NPA, also stands accused of assaulting Mrs Ziyambi.

Police investigated the criminal case and compiled a docket.

However, suspended Prosecutor-General Johannes Tomana reportedly declined to prosecute.

Col Siziba was summoned to appear at the Harare Magistrates’ Court, but Mr Tomana declined to prosecute.

After the suspension of Mr Tomana, Mrs Ziyambi instructed her lawyer, Mr Charles Warara, to write to acting PG Adv Goba, seeking a certificate to enable her to institute private prosecution against Col Siziba.

Adv Goba last week refused to temper with the decision of Mr Tomana.

Part of his response read:

“On the instruction you (Mr Warara) hold, it is clear that the Prosecutor-General declined to prosecute the matter. I am convinced that the PG declined to prosecute for a reason or reasons and that when he made the decision, he was acting in terms of the powers set out in Section 260 of the Constitution of Zimbabwe.

“The ‘office’ of the Prosecutor-General is a judicial office in my respectful opinion. In the same manner, a judicial officer has no legal authority to review and set aside a decision of another judicial officer of the same rank.

“I, as Acting PG, I have no legal power to review and set aside decisions made by the Prosecutor-General before me,” said Adv Goba.

Adv Goba added that Mr Tomana’s decision was binding.

“I am of the view that the NPA will not function effectively if I am to be harangued to review, reverse or set aside decisions previously made by the Prosecutor acting in his capacity as such of which they are legion,” said Adv Goba.

Adv Goba said Mrs Ziyambi could have asserted her rights and sought private prosecution before the suspension of Mr Tomana.

To that end, Adv Goba said it was incompetent for him to review Mr Tomana’s decision.

In a letter by Mr Warara to the Acting PG dated September 9, 2016, the NPA was given up to seven days to issue the certificate, failure of which his client would file an application at the High Court.

It is alleged Col Siziba assaulted Mrs Ziyambi on February 13 last year, at the New Government Complex in Harare.

Mrs Ziyambi filed assault and indecent assault charges at Harare Central Police Station under CR 1054/ 2/ 15 and the cases were also vetted at the PG’s office under reference number AG170/ 15.

On the day in question, it is alleged Mrs Ziyambi had a meeting with deputy national director (public prosecutions) Mr Nelson Mutsonziwa in her office discussing administrative issues affecting the NPA.

While the two were still having their meeting, it is alleged, Col Siziba stormed into the office and asked to meet Mrs Ziyambi.

After a while, Mrs Ziyambi invited Col Siziba into her office and together with Mr Mutsonziwa, they allegedly discussed outstanding issues on fuel allocation to their officers.

It is alleged that Col Siziba requested Mr Mutsonziwa to excuse them for about two minutes as he indicated that he had something to say to Mrs Ziyambi in private.

It is alleged that Col Siziba accused Mrs Ziyambi and other officers in the NPA of disliking him and his two fellow soldiers, a Major Msipa and Major Manyeruke, who were seconded to the institution.

Col Siziba then allegedly charged at Mrs Ziyambi and threatened to shoot her while poking her face.

It is then alleged that he indecently assaulted Mrs Ziyambi.