‘Acting PG offside on public prosecution’

Source: ‘Acting PG offside on public prosecution’ | The Herald October 6, 2016

Daniel Nemukuyu Senior Court Reporter—
NATIONAL director of public prosecution Mrs Florence Ziyambi says Acting Prosecutor-General Advocate Ray Goba went offside in declining to entertain her request for a certificate to privately prosecute an army colonel for indecent assault and assault charges. Mrs Ziyambi made a police report against Col Solomon Siziba accusing him of assaulting her in her office.

Col Siziba was seconded to the National Prosecution as director for administration. Suspended PG Mr Johannes Tomana declined to institute public prosecution against Col Siziba for his own reasons but Mrs Ziyambi recently requested for a certificate for private prosecution from Adv Goba.

Last week Adv Goba “washed his hands off” the case arguing that since Mr Tomana had declined public prosecution, it was incompetent for him to issue the certificate.

He stated that he was on the same level with Mr Tomana and that issuing the certificate was tantamount to unlawfully reviewing a fellow PG’s decision. However, Mrs Ziyambi through her lawyer Mr Charles Warara of Warara & Associates, wrote to Adv Goba indicating that he had missed the point.

“We are requesting certificate ‘nolle prosecue’ and not a decision if you will prosecute or not. “The decision that Mr Tomana had to make was whether he would prosecute or not but he was never asked to decide the issue of private prosecution.

“Having stated that position, we think you are missing the point by stating that you are being asked to ‘review and set aside the decision of another judicial officer’. “Clearly, this is missing the point,” reads the letter dated October 5, 2016.

The lawyers urged the PG to address the issues raised in the letter of request and not to deliberately evade critical questions. “It is deliberately missing the point for you to say we are asking you to review the decision of the suspended PG.

“We are therefore insisting that you address the point raised and not hide behind a technicality that you know does not hold water and is being raised to deny a right that our client is entitled to enjoy at law,” reads the letter. The lawyers said the Acting PG got it wrong in concluding that Mrs Ziyambi ought to have obtained the certificate from Mr Tomana only.

“We find it incorrect for you to claim that our client ought to have obtained the certificate of private prosecution only from the suspended PG. You seem to suggest that your taking over that office sealed the fate of our client’s case because Mr Tomana was suspended before he made that decision.

“With all due respect, that is just an evasive response and as such you are obliged to reply to the request as already adverted to above,” reads the letter. Mr Warara indicated that the evasive behaviour exhibited by the Acting PG was violating the rights of his client.

He threatened to approach the High Court with an application to have Adv Goba compelled to issue the certificate in question. 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 to discuss 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, 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.