Judiciary, Tomana cross swords

via Judiciary, Tomana cross swords | The Herald March 10, 2015

An ugly tiff looms between the Judiciary and the prosecution after Prosecutor-General Mr Johannes Tomana filed an application yesterday to bar the courts from interfering with his powers to decline prosecution.

In the application filed at the Constitutional Court by Mutamangira and Associates, Mr Tomana wants the same court to declare that the issuance of certificates for private prosecution solely lies within the powers of the Prosecutor-General.

This came after the Supreme Court, Constitutional Court and the High Court have directed Mr Tomana to issue out private prosecution certificates in cases where he would have declined public prosecution.

Telecel Zimbabwe won its case for private prosecution at the Constitutional Court in a case in which former chairperson Dr Jane Mutasa is being accused of defrauding the mobile communication service provider of thousands of dollars in an airtime scandal.

The High Court also ordered Mr Tomana to issue a certificate for private prosecution in a case in which Bikita West legislator Dr Munyaradzi Kereke is being accused of raping a minor.

Mr Tomana is under pressure to comply with the orders and lawyers representing the complainants in the matters have written several letters seeking his compliance, without success.

Directing the Prosecutor-General to issue out a certificate of private prosecution, it is argued, was tantamount to a breach of Mr Tomana’s constitutional independence and protection from control of anyone.

“Of late, several pronouncements have been made by our honourable courts directing me to issue a certificate of nolle prosequi (certificate of private prosecution) to individuals seeking to institute private prosecutions,” said Mr Tomana.

“In the making of these orders, I have observed that the question of the constitutional independence and protection from the direction or control of anyone has not been addressed.

“If at all addressed, I have observed that this has been done in passing, without devoting due attention to the extent and scope of my independence and protection from control of anyone.”

Mr Tomana said the courts or any other arms could not at law compel him to issue the certificate.

“However, the Prosecutor-General cannot be pressured into making a decision by anyone,” he said.

“The responsibility for the eventual decision to prosecute or not to prosecute rests with the Prosecutor-General and he is not to be put under pressure by his colleagues in the matter.

“This recognition of the autonomy of the PG is widely known as ‘the Shawcross Principle’, which in my respectful view applies with equal force in this jurisdiction.”

Mr Tomana urged the courts to respect the doctrine of the separation of powers.

“In my respectful view, the doctrine of separation of powers ought to be allowed to reign supreme because even the independence of the honourable courts will be in jeopardy if these constitutionally entrenched boundaries are not respected,” argues Mr Tomana.

Mr Tomana argues that his exercise of prosecutorial discretion was not susceptible to judicial review. His decisions in that regard, his papers read, are beyond the province of the court’s review.

He submitted that the courts were in breach of the Constitution by compelling him to issue private prosecution certificates.