Source: Tomana blocks JSC move | The Herald May 5, 2016
Fidelis Munyoro Chief Court Reporter—
Suspended Prosecutor-General (PG) Johannes Tomana has thwarted the Judicial Service Commission’s attempt to bring constitutional issues through a notice in the case in which the PG wants a judge outside the High Court to hear his interdict application. The JSC had brought before the High Court a notice of what it termed 15-point constitutional issues, which it wanted referred to the apex court for determination in a counter application to Tomana’s application for referral to the same court.
However, Justice Lavender Makoni ruled that the notice was invalid and threw out the request. She ruled that there were disputes of fact in the matter, which were highlighted by Tomana’s lawyer Advocate Thabani Mpofu.
One of the disputes is whether the JSC was exercising its function when it instituted the proceedings against Tomana. These disputes required JSC to place evidence before the court and also for Tomana to respond to evidence for the court to make a finding of the factual conspectus from which the commission’s constitutional issues arise.
The JSC approached the court wrongly and its application was dismissed. After the ruling, Justice Makoni asked Adv Mpofu to “motivate” the applicant’s case as the hearing continued. Adv Mpofu argued that his client never requested for a foreign judge to hear his case. He argued that under Section 181 (3) of the Constitution, an acting judge can be appointed.
He said acting judges could be appointed only from a pool of the country’s former judges. To this end, he said, Tomana wanted a local judge, but who is presently not sitting in the High Court, because justice “must be seen to be done”.
Adv Mpofu submitted that the JSC has become the complainant, prosecutor and judge in the matter. Adv Mpofu argued that justice and fairness demanded that a person who is not affected by this process be asked to sit in the judgment over the case.
When the hearing commenced early this month, the JSC conceded to have Tomana’s case referred to the Constitutional Court. JSC lawyer Mr Addington Chinake of Kantor and Immerman was not opposed to the referral of the matter to Constitutional Court, but denied that a correct procedure had been followed.
In his application, Tomana wants to stop JSC from continuing with the process leading to his possible removal from office. He wants that challenge to be heard by a retired High Court judge or any judge not sitting in the higher court.
Tomana faces possible removal from office due to non-compliance with court orders. He is facing criminal charges at the Harare Magistrates’ Courts involving the attempted Gushungo Dairy bombing.
In October last year, he was slapped with a 30-day term of imprisonment for contempt of court after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Munyaradzi Kereke and Telecel shareholder Jane Mutasa.
Kereke is accused of raping an 11-year-old relative, while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars. Mr Tomana was fined by a nine-member judge’s panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.
The sentence was, however, wholly set-aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, failure of which he would be barred from practising as a lawyer in Zimbabwe.