via Makarau defends JSC in Tomana saga – NewsDay Zimbabwe March 2, 2016
Judiciary Service Commission acting secretary, Justice Rita Makarau, says Prosecutor-General (PG) Johannes Tomana has an obligation to respond to questions on why President Robert Mugabe should not be consulted on the need to set up a tribunal over allegations of abuse of office and incompetence against him.
BY CHARLES LAITON
The JSC last month wrote to Tomana inviting him to answer several allegations made against him, so as to enable the commission to be guided in making or desisting from making a recommendation to the President for the appointment of a tribunal.
But, instead of responding to the questions, Tomana approached the High Court challenging the JSC’s move, arguing it had no mandate to institute such proceedings as he occupied the same position as the Chief Justice (CJ).
Tomana’s move has been viewed by the JSC as “an attempt to circumvent the operation of a final order of the Constitutional Court of Zimbabwe”.
In her affidavit, Justice Makarau dismissed Tomana’s assertions saying his office was not equivalent to the CJ’s office.
“With respect, the supreme law is very clear that the provisions relating to the removal of a judge from office apply to the removal of the Prosecutor-General from office. In any event, even if the position of the PG was equivalent to that of the CJ, which it is not, the first respondent (JSC) is constitutionally empowered to initiate the removal of the CJ himself from office,” Justice Makarau said.
Justice Makarau further said it was evident that the PG’s Office, JSC, the Judiciary and the court system were all separate and distinct institutions or offices established under the supreme law of the country.
“Secondly, it is clear that any member or incumbent of/in any of these institutions/positions is subject to disciplinary proceedings as provided by the law. There is no immunity granted to any of the officers described above,” she said.
By filing an urgent chamber application at the High Court, Justice Makarau said, Tomana had misconstrued his rights and urged the court to dismiss it.
She castigated Tomana’s lawyer Steven Zvinavakobvu, who prepared the Certificate of Urgency saying he had not read the papers correctly.
“Mr Steven Zvinavakobvu did not apply his mind to the facts giving rise to his opinion that the matter is urgent, and his opinion displays a cavalier approach to urgency and the real possibility that he did not read the papers,” Justice Makarau said.
“Paragraphs 5 and 6 of the Certificate of Urgency, with all due respect, do not make grammatical sense, and, in any event, do not establish urgency.”