Tomana saga heads to Concourt | The Herald March 18, 2016
Daniel Nemukuyu Senior Court Reporter
The legal battle pitting the Judicial Service Commission and Prosecutor-General Mr Johannes Tomana has escalated with the commission seeking the intervention of the Constitutional Court to determine whether, in terms of the supreme law, Chief Justice Godfrey Chidyausiku and Mr Tomana are at par.
Mr Tomana, in his urgent chamber application at the High Court, argued that his post was at par with that of Chief Justice Chidyausiku and that the JSC had no powers to institute proceedings leading to his possible removal from office.
He questioned the involvement of the Chief Justice’s Office in the process leading to his possible removal from office.
JSC contends that the process of the removal of a judge from office, as outlined in the Constitution, applies to the removal of the PG in the event that there are reasonable grounds for his possible removal from office.
While the urgent chamber application was still pending, Mr Tomana filed a chamber application before the same court seeking referral of his case to the Constitutional Court for determination on whether or not a serving judge of the High Court can fairly handle his challenge.
Mr Tomana is being represented by Advocate Thabani Mpofu and Mambosasa Legal Practitioners.
He preferred a foreign-based or a retired High Court judge, rather than a locally serving judge.
Mr Tomana raised five other constitutional issues that he wishes the Constitutional Court to address.
The JSC, through its lawyer Mr Addington Chinake of Kantor and Immerman, consented to the referral of the six points for determination to the Constitutional Court, but yesterday notified the same court of its intention to apply to have the Constitutional Court determine its own 13 questions, chief among them being, whether the offices of the Chief Justice and that of the PG were at par.
The JSC, in the notice filed at the High Court on Wednesday, wants the Constitutional Court to make a ruling on whether the provisions of Section 259 (7) of the Constitution of Zimbabwe relating to the removal of a judge from office apply to the removal of the PG from office.
Section 259 (7) of the Constitution reads:
“The provisions relating to the removal of a judge from office apply to the removal of the Prosecutor-General from office.”
In terms of Section 187, which deals with the removal of a judge from office, JSC is mandated to advise the President if there is any need for an investigation into the conduct of a judge before the Head of State and Government appoints a tribunal inquire into the matter.
The JSC wants the Constitutional Court to rule on whether or not it can review its own decision and to make a declaration on whether the decisions of that court were binding to all inferior courts in the country.
The commission wants the court to decide on whether the Constitutional Court can properly sit when either the Chief Justice or his deputy are not part of the nine-member bench. It is the JSC’s request for the court to decide on the constitutionality of the ad hoc appointment of a foreign judge to determine any process instituted in terms of Section 259(7) as read with Section 187 of the Constitution of Zimbabwe.
Mr Tomana interpreted Section 259(7) of the Constitution to mean that he was at par with the Chief Justice as head of the National Prosecuting Authority and that only the President can activate his possible removal from office.
“To the extent that I am head of prosecuting authority, I stand in the same position as the Chief Justice who is the head of the judiciary.
“The effect of that is that a process for my removal from office can only be activated by the President himself and not by a judge.
“Any interpretation which makes judges players in this process places upon them supervisory jurisdiction over my work and violates section 260 of the Constitution of Zimbabwe,” he said.
Mr Tomana also alleged a serious conflict of interest in the matter in that the Chief Justice was part of the court that found him guilty of contempt of court and sentenced him to 30 days in prison in October.
The Chief Justice, Mr Tomana argued, acting for the JSC, authored the contested letter commencing proceedings into the PG’s possible removal, thereby acting as a judge in his own cause.
High Court judge Justice Lavender Makoni will hear the referral application by both parties on April 5 this year.