Tomana complies to avoid jail

via Tomana complies to avoid jail – The Zimbabwe Independent November 6, 2015

PROSECUTOR-GENERAL Johannes Tomana on Thursday — with four days remaining on his 10-day ultimatum — complied with the Constitutional Court (Concourt) ruling compelling him to issue private prosecution certificates to two aggrieved parties to avoid going to jail or being banned from legal practice, paving way for the hearing of a rape case involving legislator Munyaradzi Kereke while potentially opening a Pandora’s box.

Herbert Moyo

Lawyers who spoke on condition of anonymity told the Zimbabwe Independent yesterday that Tomana issued the private prosecution certificates to Francis Maramwidze, whose family is seeking to privately prosecute Kereke, the former adviser to governor of the Reserve Bank of Zimbabwe. Maramwidze alleges that Kereke sexually abused his then 11-year-old foster daughter at gunpoint in October 2010.

The matter was initially reported to police, who then referred the docket to the then Attorney-General’s office, which declined to prosecute. However, in May this year the matter was heard at the ConCourt where the National Prosecuting Authority (NPA) was ordered to issue Maramwidze with a certificate technically referred to as the nolle prosequi (dismissal or termination of legal proceedings by the Attorney-General) to facilitate Kereke’s private prosecution.

Tomana issued the other certificate yesterday to Telecel Zimbabwe for the private prosecution of its former chairperson Jane Mutasa on fraud charges relating to a US$1,7 million airtime scam dating back to 2009. The Telecel case has since been resolved amicably, according to reports.

Last Wednesday, the Concourt convicted and sentenced Tomana to 30 days in jail, which was wholly suspended on condition he produces certificates for private prosecution in the two matters where the state had declined to prosecute alleging lack of evidence.

The full bench headed by Chief Justice Godfrey Chidyausiku, however, wholly suspended Tomana’s jail term on condition that he issues the private prosecution certificates to the two parties within 10 days or risk being jailed and barred from practicing as a lawyer in Zimbabwe.

At the time of the Concourt ruling last week, there were suggestions that Tomana could find an escape route after Presidential spokesperson George Charamba said government would study the court ruling with a view to resolving what he said were contradictions in the constitution over the power and the rights it gives to individuals and state institutions in such matters.

However, with the issuance of the certificate the stage is now set for Kereke to have his day in court in a case which could open a can of worms for the Bikita legislator.

The issuance of the certificates also has the potential of opening the floodgates for numerous other applications by Zimbabweans seeking private prosecution certificates in unresolved cases.

The Tomana case has badly exposed Vice-President Emmerson Mnangagwa who was fighting in parliament to amend the law to serve the Prosecutor-General and reportedly Kereke, his key political allies.