via JSC escalates battle against Tomana – DailyNews Live Gift Phiri, NEWS EDITOR • 2 March 2016
HARARE – The Judicial Service Commission (JSC) has opposed embattled Prosecutor-General Johannes Tomana’s application seeking an interim order stopping his possible removal from office.
Tomana on Tuesday last week filed an urgent chamber application seeking to stop the setup of a tribunal that would examine if he was still fit for office given his refusal to obey court judgments ordering him to issue private prosecution certificates.
Tomana was threatened with imprisonment by the Constitutional Court (Con-Court) after refusing to okay the private prosecution of Bikita West Zanu PF legislator Munyaradzi Kereke, accused of raping two minors, and to allow mobile phone company Telecel to privately prosecute Zanu PF official and Harare businesswoman Jane Mutasa for fraud.
The JSC argued the two cases “both speak to your suitability to continue to hold the office of prosecutor-general”.
Citing the Constitutional Court and the High Court rulings against Tomana, the JSC said: “On the basis of these judgments, the JSC is of the view that a prima facie case exists for it to act in terms of Section 259(7), as read with Section 187, of the Constitution of Zimbabwe, subject to any submissions you may wish to make in this regard.”
Tomana is seeking to stop the appointment of a tribunal to investigate his conduct.
The case is seen as a credibility test for the judiciary, which was reconstituted in line with the new 2013 Constitution to rid it of the graft and incompetence that had undermined its effectiveness for decades.
This also comes as Tomana has been arrested and is currently being prosecuted for allegedly abusing office and trying to defeat the ends of justice after withdrawing charges against two military officials implicated in the plot to bomb Mugabe’s Alpha Omega dairy, a multi-million-dollar business located in Mazowe, a subsidiary of the First Family’s business empire, Gushungo Holdings.
JSC chairman Chief Justice Godfrey Chidyausiku on February 12 gave the beleaguered Tomana 10 days to show cause why he should not be fired, and lodged papers seeking protection from the impending action.
Tomana cited the JSC and Justice minister Emmerson Mnangagwa as respondents.
But the JSC filed a notice of opposition to Tomana’s application on Monday.
“Take notice that the first respondent intends to oppose the urgent chamber application in casu on the grounds set out in the opposing affidavit as read with its annexure,” JSC secretary Rita Makarau said in her notice of opposition being handled by Kantor and Immerman law firm.
Tomana had sought a declaratory order on the invalidity of the process to remove him from office.
But Makarau’s preliminary submissions stated that the Supreme Court was very clear that provisions relating to the removal of a judge from office apply to the removal of the PG from office.
In an 11-page affidavit, Tomana argued that the Con-Court judgment which committed him to jail unless he issued certificates for private prosecution was issued from a court without jurisdiction.
“The orders I was held to have been in contempt of are orders of the High and Supreme Courts respectively,” he argued.
“Compliance with those orders is enforced by the High Court. In fact, as at the date of the order of the Constitutional Court, proceedings for contempt had been instituted in the High Court. The Constitutional Court has no jurisdiction to relate to a matter which was within the purview of the High Court.”
He further argued that the Con-Court dealt with a matter which was not before it and also claimed the highest court in the land cannot at law deal with a contempt of court matter, averring that he had in fact made an ex-parte application which sought the declaration on the question of his independence.
But Makarau argued that “the judgment of the Constitutional Court is valid because in our legal framework as currently structured, there is no higher authority that can set it aside”.
“Even the Con-Court itself cannot review its own decision for the purposes of reversing itself, something that the applicant (Tomana) not only bases his application on, but hopes will happen.”
The Con-Court order, Tomana argued, was also a nullity given that deputy Chief Justice Luke Malaba was not part of the bench when the order was granted.
“Constitutionally, the Con-Court cannot be properly constituted within the first seven years of its life if it does not consist of the Chief Justice and the Deputy Chief Justice who must sit together in hearing any and every matter,” he argued.
“An order by an improperly constituted court is obviously a nullity.”
Tomana also cited a case lodged by Rooney Kanyama, questioning the validity of the Con-Court order ordering that he be jailed.
“The main order upon, which the first respondent seeks to proceed is, therefore, under challenge. I will shortly be filing my position to the matter of the challenge of the order,” he said.
Makarau said: “The issues that the applicant has brought before this honourable court are the very issues that the first respondent (JSC) invited the applicant to bring to its attention so that it is guided in making or desisting from making a recommendation to the President for the appointment of a tribunal.”
Chidyausiku has subsequently written to Tomana clarifying that the Con-Court had found as a fact that he disobeyed orders of the court.
“This was common cause and, in my view, no detailed reasons are required in this regard,” Chidyausiku said, further attaching two judgments that Tomana failed to obey.
“The Con-Court considered your failure to obey these court orders constituted a violation of Section 165 (1) of the Constitution of Zimbabwe and imposed on you what it considered appropriate punishment for such transgression,” the Chief Justice said.
“The fact that the Constitutional Court found as a fact that your disobedience of the court orders merited the punishment it imposes triggered, together with the other allegation, the mechanism for the JSC to consider whether or not it should exercise the power conferred on it in terms of Section 159(7) as read with section 187, of the Constitution (to remove you from office).”