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.