via Kereke case: Guardian wants Tomana charged | The Herald January 22, 2015
The guardian of a girl who was allegedly raped by Bikita West legislator Dr Munyaradzi Kereke has approached the High Court seeking an order for contempt of court against Prosecutor-General Johannes Tomana for reportedly refusing to issue a certificate to prosecute the legislator.
In an application brought to the High Court on Tuesday, Mr Francis Maramwidze wants Mr Tomana convicted for defying the court and punished in accordance with the law.
According to the draft order, Mr Maramwidze asked the High Court to find Mr Tomana guilty of contempt of court and have a fine of US$1 000 imposed on him or six months imprisonment, which shall be wholly suspended on condition that within five days of the order, the PG shall comply with the order issued on May 14 last year.
Mr Tomana was on May 14 last year ordered to issue a certificate for the private prosecution of Dr Kereke.
Dr Kereke appealed against the decision at the Supreme Court and lost.
Following the court order, the family, through their lawyer Mr Charles Warara, have made several attempts to push Mr Tomana to act on the case.
In his affidavit accompanying the court application, Mr Maramwidze accused Mr Tomana of negating the court order.
“Despite several letters written specifically to the respondent requesting him to avail this certificate, respondent has remained adamant giving strange reasons for delays that have been incurred in prosecuting the case,” said Mr Maramwidze.
Mr Maramwidze attached letters written to Mr Tomana in an attempt to cajole him to act on the matter.
“In view of all this, it is evident that the respondent does not want to comply with this court’s order,” he said.
“Respondent is fully wilfully refusing to oblige. Reasons advanced for non-compliance are not cogent and in the premises I seek an order of contempt of court against respondent in his personal capacity since he has effectively refused to comply with a court order.”
Dr Kereke is alleged to have raped a then 11-year-old girl at gunpoint at his home in Vainona, Harare.
The family sued Mr Tomana and his office at the High Court and won the case for private prosecution of the legislator.
Dr Kereke’s attempt to appeal the High Court decision failed after the Supreme Court rejected the case.
In the High Court proceedings in which Justice Happias Zhou ordered Mr Tomana to issue the certificate for Dr Kereke’s prosecution, the legislator was not cited as party and his decision to approach the Supreme Court challenging the same decision was wrong at law.
Dr Kereke’s lawyers conceded the error and unsuccessfully sought to withdraw the appeal.
The court of appeal ruled that a withdrawal was not possible because the case was improperly set before them and striking it off was the most appropriate action.
The application by the victim’s family comes at a time Telecel Zimbabwe is also mulling to take a similar action against Mr Tomana.
Mr Tomana has ignored the company’s call to issue it with a certificate for the private prosecution of the company’s shareholder Jane Mutasa in a fraud case involving US$1,7 million in airtime recharge vouchers.
This prompted lawyers representing Telecel Zimbabwe to write to Chief Justice Godfrey Chidyausiku to deliver a written judgment to force Mr Tomana into action.
But the Superior Court’S Acting Chief Registrar Mr Munamato Mutevedzi said the Constitutional Court order was enough for the PG to act since its effectiveness did not depend on the reasons for judgment.
The lawyers accuse Mr Tomana of defying a Constitutional Court order directing his office to issue a certificate for the private prosecution of Mutasa.
Mutasa was arrested in 2010 along with the company’s commercial director, Naguib Omar, for allegedly stealing airtime vouchers worth US$1,7 million.