via ‘ConCourt not infringing Tomana’s rights’ – NewsDay Zimbabwe November 5, 2015
Legal experts have said the Constitutional Court (ConCourt) ruling compelling Prosecutor-General (PG) Johannes Tomana to issue two certificates of private prosecution is not an infringement on his rights and independence of his office.
BY XOLISANI NCUBE
Constitutional law lecturer, Lovemore Madhuku, said the supreme law states that the PG’s office does not have rights, but powers and as such, is not immune to being directed by the apex court on any matter.
“The law is very clear, the PG does not have rights in his official capacity because the office is a public institution and he has powers, so for anyone to say the ConCourt was infringing on his rights is misplaced,” he said.
“What the State should do is to amend the law and put a provision to define the independence of the PG’s office. But as things stand, that independence is not absolute, but subject to the courts.”
Last week, the ConCourt sentenced Tomana to 30-days in jail, which was wholly suspended on condition he produces certificates for private prosecution in two matters where the State had declined to prosecute alleging lack of evidence.
Tomana was ordered to issue the certificates in a case where Bikita West MP, Munyaradzi Kereke (Zanu PF) is facing charges of raping a minor and another where Telecel Zimbabwe sought the prosecution of its former chairperson, Jane Mutasa, for fraud. The Telecel case has since been resolved amicably according to reports.
But Zanu PF officials said the refusal by Tomana to issue certificates of persecution was not of his own making, but due to contradictions created by the law.
Zanu PF insiders said some in the ruling party feared victims of political violence could use private prosecution to achieve justice for crimes such as the 1980s Gukurahundi atrocities in Midlands and Matabeleland.
Madhuku said even though every citizen had a right to private prosecution, they will still have to apply from the PG’s office for a certificate and this could still be turned down and the courts will have the final say.
“It’s not like once a precedence has been set it becomes obvious that all those wishing to have private prosecution could do so, they will still have to go through the PG’s office and he can turn them down and again go to court where the issue is looked at based on merit not assumption,” he said.
An estimated 20 000 civilians were killed in an army crackdown during the Gukurahundi era.
Reacting to the Gukurahundi concern, Higher Education minister Jonathan Moyo said on Twitter: “Among the whackiest factionalist gibberish on Tomana’s ConCourt conviction is the claim that it’ll inspire private Gukurahundi prosecution.”
Legal expert, Alex Magaisa, said fears that private prosecutions could cause panic in Zanu PF were understandable, but misplaced.
“I’ve no doubt that is the fear from their side. The guilty are always afraid. But I don’t believe there was ever any risk of floodgates. It’s not as if the private prosecution facility is new,” he said.
“If the facility of private prosecution was new and unknown before now, I would understand that fear as credible, but this has always existed and has not been used for a reason.”