via Prosecutor-General Tomana caged – DailyNews Live Tendai Kamhungira • 3 February 2016
HARARE – In a stunning development, police arrested and detained Prosecutor-General Johannes Tomana on Monday on charges of criminal abuse of office after he allegedly illegally released suspects accused of attempting to topple President Robert Mugabe from power.
Although Tomana, 48, was not in hand-cuffs when he arrived at a packed Harare Magistrates’ Court in the afternoon for his bail hearing, he was under heavy police escort, which included members of the riot squad.
Harare magistrate, Vakayi Chikwekwe, granted him $1 000 bail.
As part of his bail conditions, he was ordered to surrender his passport, report three times a week to police, and to reside at the address that he provided to the court.
He will be back in court on February 16.
Prosecutors Timothy Makoni and Gwinyai Shumba said Tomana had allegedly ordered the illegal release of Solomon Makumbe and Silas Pfupa, who are facing treason charges, before police had finalised their investigations into the matter.
Makumbe, a serving member of the Zimbabwe National Army, and Pfupa, a former soldier, are jointly charged in the treason case together with Owen Kuwacha — leader of the little-known Zimbabwe People’s Front party — and another serving soldier, Borman Ngwenya.
The four, who were arrested on January 22 this year, were initially accused of possessing weaponry for the purpose of committing sabotage at the First Family’s Gushungo Dairy farm in Mazowe, before the charge was elevated to treason yesterday.
The National Prosecuting Authority’s national director for public prosecutions, Florence Ziyambi, her deputy Nelson Mutsonziwa, chief law officer Michael Rutendo Mugabe and Chris Mutangadura directed at the time that the four be placed on remand as there was reasonable suspicion that they had committed the offence.
The accused were later remanded in custody to February 8, after being advised to apply for bail at the High Court.
“On January 29, the accused person, as the Prosecutor-General, well knowing that police investigations were still in their infancy, and without having sight of a complete docket, clandestinely directed the withdrawal of charges before plea against two of the principal accused, Solomon Makumbe and Silas Pfupa, who were resultantly released from remand,” reads part of the court papers.
The offence is said to have been discovered by the investigating team when it went to Chikurubi Maximum Security Remand Prison for further investigations, upon which they realised that Makumbe and Pfupa had already been released.
“The accused person, using his authority as the Prosecutor-General ordered his subordinate Michael Mugabe to originate a document memorandum instructing (Mr Jonathan) Murombedzi, the district public prosecutor, Harare, to cause the withdrawal before plea of the charges against the two accused persons supra,” the court heard.
It is further alleged that the investigating team then made follow-ups with Murombedzi, who indicated that he had acted under Tomana’s instructions.
“Investigations revealed that contrary to, and inconsistent with his duties, the accused had unlawfully endorsed the withdrawal of charges against Solomon Makumbe and Silas Pfupa, and this also amounts to defeating or obstructing the course of justice,” the court heard.
The State opposed his bail application yesterday after evidence from the investigating officer, assistant commissioner Thulani Ncube, who told the court that Tomana was not a suitable candidate for bail as he was allegedly a flight risk.
Ncube also said Tomana was facing a serious offence and because of his power, he could influence the outcome of the pending investigations, adding that he was still to interview six witnesses.
He added that Tomana was well-connected in the region and internationally, which would result in him seeking aid from his friends and connections to flee from the court’s jurisdiction.
However, Tomana’s lawyers, Thabani Mpofu, Alex Mambosasa and Tazorora Musarurwa, denied Ncube’s claims, with Mpofu saying the State’s case was hopeless.
He also accused Ncube of committing criminal abuse of office himself by failing to give a clear explanation as to why he was opposed to Tomana being released on bail.
Mpofu said Tomana had exercised his discretion in terms of Section 260 (1) of the Constitution which gave him independent powers that were not subject to anyone’s control, adding that the police were interfering with Tomana’s prosecutorial functions.
This is not the first time that Tomana has recently been in the news for the wrong reasons.
He was slapped with a 30-day jail sentence by the Constitutional Court in October last year — which he escaped by a whisker — for defying orders by the courts to authorise the private prosecution of rape-accused Zanu PF legislator Munyaradzi Kereke and businesswoman Jane Mutasa.
The ruling came after Tomana approached the highest court in the land challenging judgments of the High Court and Supreme Court compelling him to issue certificates for the private prosecution of Bikita West MP Kereke — who stands accused of raping an 11-year-old girl — as well as that for Mutasa, who was being accused of defrauding Telecel Zimbabwe of $1,7m in airtime.
Last year, First Lady Grace Mugabe, children’s rights activists and women’s organisations called for Tomana’s removal from office after he made controversial statements on child marriages.
Tomana had said that girls as young as 12 must be listened to by the courts if they wished to start families with older men, because they were capable of consenting to sex.
He was also quoted by State media implying that he did not have any problems with child molesters who escaped prison and got away with community service sentences serving their punishment at schools where they had potential to abuse other children.
COMMENTS
Appointment of Tomana as PG was, from the start, just another glaring indictment of Mugabe’s warped sense of judgment – that is, if the good-for-nothing old man has any sense of judgment at all; which I doubt very much.
Tomana is a criminal who belongs behind bars. He does not at all appreciate that Zimbabwe, like any other normal society, has norms and laws that need to be abided to by all citizens. He thinks whatever he wants goes – including killing & raping of children.
So, can anyone imagine a person like that being appointed to PG position? Yes, but only in a banana republic & run by a banana president. Nxaaaaaa!
there are many who have suffered unjustly at the hands of tomana;
some of them were fighting for the restoration of the rule of law in zimbabwe: Jestina, the MDC 27, and many more.
Political policy is highly ideological and loaded with quasi-religious convictions. Political policy is non-factual, ignores the facts and the circumstances, has no memory and is relentless in its pursuit to satisfy its immediate needs. The fickleness of political policy , in ZANU PF, is further eroded by factional divisions. In the olio and cacophony of ZANU PF politics of supremacy, Tomana gets caught in between and with him a constitutional office. Constitutionally, only the courts can reprimand an Attorney General in the execution of his duties. This is not political, non-ideological and is a fact we imposed on our self ( our self as in Zimbabwe one and singular). The efficacy and supreme being of the constitution is at stake here. If Tomana fails the Constitution is dead, if he succeeds, the very same judges who will uphold the Constitution may find themselves in the gallows.
Everything being constitutional, the police are wasting time and money going after Tomana. The presiding magistrate is not learned. The general public can ululate all they want but the office of the AG is a constitutional office. It is one of the few offices that draw direct power from the constitution. It is actually more powerful than a ministerial office. A ministerial office exists at the whims of the presiding president and can be wiped out at the behest of the president. A minister for Sports can be there today and the next morning the whole ministry may not exist. The AG’s office will exist until the constitution is dissolved or amended. Arresting the AG for executing his duties (whether he is wrong or right) is an affront on the constitution, it is a savage accost on our very existence as a nation of laws. The constitutional challenge transcends our emotional likes or dislikes of the persona Tomana. In reality the challenge makes Tomana irrelevant, it makes the circumstantial case moot, the challenge is to the constitution itself hence the magistrate, if he was learned, should have referred this case to the High Court which would refer it straight to the Constitutional Court. Tomana, whether we like it or not, will be released with no charge not because he did the right thing but because as the AG he is constitutionally protected. It is folly for the police to follow political persuasions especially now in the hodgepodge of ZANU PF politics of supremacy. Tomana may be despicable as an AG but he holds a constitutional office. Tomana may be political but he still fills a constitutional space. Tomana may have been put there by political means but once there he ceases being political, he is a constitutional creation. It does not matter whether some disagree or some agree with Tomana but all should respect the Constitution. Please note that by the end of this saga, nobody will remember what caused it all, the main thing will be whether the constitution is supreme over political policy (in this case political stupidity), needs and ideology. Whether Zimbabwe is a constitutional republic is the whole case here, there is no other. The alleged perpetrators may walk free, who cares there already many known criminals who are free, but the Constitution will rule supreme. It should or else all is lost. All hope, achievements, magamba arere, multi-party democracy, constitution, in fact everything will be lost. Forget about Tomana and the other perps, The constitution has to prevail and if that saves Tomana so be it.
Yet this is Zimbabwe, idiocy may prevail.
This is the Zimbabwe that Tomana, himself, and his Zanu pf handlers want. The Constitution that some lawyers and sundry may waste time quoting and/or referring to,wrongly or rightly, is a mere piece of paper as far as zanu pf government (of which Tomana is a central figure) is concerned.
Yes, its nice for law experts to lecture us about the Constitutional rights of Tomana’s office. But, lets not forget the same office holder, Tomana, has on many occasions shown a penchant for defying the same supreme law, including defying of several court orders and denying other citizens their right to access justice.
So, are we being told that the constitution should be followed to the letter as and when Tomana is affected by failure of other powers-that-be to follow the constitution? I say no. Since Tomana does not abide by the constitution he should not expect to enjoy the protection of the same document that he has no respect of. Surely, that would be the highest level of double standards – which are typical of Zimbabwe’s Tomana’s of course.
My precise point is Tomana must rot in jail. He is a criminal who does not respect the country’s constitution. Hence there is no reason to apply the very document that he has shown overwhelming contempt of. Rot; Tomana Rot! Nxaaaaaa!
My my what goes around comes around.Serves you right you thug.