Tendai Kamhungira 19 August 2017
HARARE – High Court judge Tawanda Chitapi has slammed acting
Prosecutor-General (PG) Ray Goba, describing his attempts to have him
recused from handling his predecessor Johannes Tomana’s criminal case as
unbecoming, unprofessional and unethical.
This comes after Goba early this year wrote to Judge President George
Chiweshe, requesting that Chitapi recuse himself from Tomana’s case.
Tomana, who has been sacked from his post as the PG, is facing charges of
criminal abuse of office.
According to the letter referred to in court, Goba claims that Chitapi
cannot handle Tomana’s case because he was once a board member of the
National Prosecuting Authority.
He also accuses the judge of keeping referring to Tomana as the
prosecutor-general, claiming he is the legitimate bearer of that office.
Chitapi subsequently summoned Goba to court to explain his conduct of
citing the judge as a litigant in the application for recusal, but he
failed to come.
In his judgment yesterday, Chitapi said the State failed to justify its
reasons for demanding his recusal.
“I reach the conclusion that the machinations of the acting
prosecutor-general in writing a letter that the judge president interferes
with the independence of the presiding judge, of refusing to appear before
the court to explain his conduct, of citing the judge as a litigant to the
application for recusal and of deposing to an affidavit and alluding to
matters which did not happen in court and distorting facts were
unbecoming, unethical and unprofessional.
“One will be forgiven for holding that the conduct was self-serving as
opposed to pursuing the interest of justice. It was for the above
observation that I prefaced my judgment by describing the conduct of the
acting prosecutor- general as creating a storm in a tea cup and as an
example of much ado about nothing,” Chitapi ruled.
The judge went on to dismiss the application.
“After a careful consideration of the application and submissions by
counsel for both the prosecution and the accused person, I rule that the
State has failed to discharge the onus to establish cognisable grounds for
the judge’s recusal and the application is dismissed,” he ruled.
He, however, said since he had not yet started hearing the case against
Tomana, any judge could be assigned to hear the matter.
“It remains in the court in which it was set down that is Court A and once
reset, any judge presiding in that court can deal with it,” he said.
Emmanuel Mukweva appeared on behalf of Tomana, while Edmore Nyazamba
represented the State.
According to court papers, charges against Tomana emanate from the time
when former Information deputy minister and MP Bright Matonga was still
Zupco’s chief executive officer.
The court heard that in 2004, Matonga was charged with culpable homicide
arising from a traffic accident which resulted in the death of Chipo
Chikowore. When Tomana became the country’s attorney-general, he
reportedly ordered his subordinates to drop the criminal charge against
Matonga, without having sight of the docket and knowledge of circumstances
surrounding the case.
He is further accused of protecting Charles Nherera, another former Zupco
board member, who was also facing charges of contravening the Prevention
of Corruption Act.
According to State papers, Tomana also facilitated the illegal release of
Beauty Basile, an acting medical superintendent who was based at Bindura
General Hospital in 2009.
Basile had been arraigned before the court accused of criminally abusing
her duties and also faced 219 counts of corruption.
Tomana is also accused of assisting the release of Patrick Mavros, an
illegal gold dealer, who was found in possession of 9kg of the precious
He was accused of contravening the Gold Trade Act, by operating without a