via Tomana must do the honourable thing: resign – The Zimbabwe Independent October 30, 2015
IN the aftermath of the Constitutional Court (ConCourt) ruling which slapped slap Prosecutor-General (PG) Johannes Tomana with a 30-day imprisonment, wholly suspended on condition he issues private prosecution certificates to Telecel Zimbabwe and one Francis Maramwidze within 10 days, or risk being barred from practicing as a lawyer in Zimbabwe, the PG finds himself in an invidious and untenable position to continue in his job.
Candid Comment by Owen Gagare
The full bench of the court, headed by Chief Justice Godfrey Chidyausiku, unanimously agreed Tomana was guilty of contempt of court after dismissing his ex-parte application seeking to have unfettered prosecutorial powers. Tomana had refused to grant Maramwidze a private certificate to prosecute Bikita West legislator Munyaradzi Kereke over allegations of raping his relative’s 11-year-old daughter at gunpoint. He had also denied Telecel a certificate to privately prosecute its former board member, Jane Mutasa over alleged misappropriation of airtime amounting to US$1,7 million.
This was after his office had declined to prosecute the alleged offenders.
Instead of granting certificates, Tomana ignored High Court and Supreme Court orders after which he made a ConCourt application seeking to have unfettered prosecutorial powers. The application was dismissed with costs.
Chidyausiku said Tomana had contravened sections 164 (3) and 165 (1) (c) of the constitution, adding the law does not provide the PG with a “blank cheque” to choose whom to prosecute or not to prosecute.
“His responsibility is to prosecute whoever disobeys the court orders, but he himself turns out to disobey the court orders, that in itself troubles this court,” Chidyausiku said.
“What is troubling the court is an officer of the court who deliberately, not once, but twice, disobeys the court orders.”
Even if he complies with the ruling, his already questionable reputation has been damaged by the case. His suitability for office was questioned in June when he was quoted in the state media suggesting that girls under the age of 12 could consent to sex, but he weathered the storm.
But the ConCourt ruling, which questions his neutrality, commitment to uphold the constitution and respect of the rule of law, puts him in a difficult position.
Section 260 (1) (b) which deals with the independence of the PG demands that whoever is in the office “must exercise his or her functions impartially and without fear, favour, prejudice or bias.”
The constitution also says the PG should not violate the fundamental rights or freedoms of any person in the discharge of its duties. But Tomana attempted to deny Telecel and Marwamidze their fundamental rights by refusing them a right to be heard in court. Crucially also, he showed total disrespect for the court, resulting in a stern rebuke from Chidyausiku.
Tomana may have proven that he no longer fits the bill of being the PG given new serious questions on his impartiality and commitment to respect the courts and the constitution. Given all this, Tomana must do the honourable thing: resign.
COMMENTS
its vitally important for the rule of law in zimbabwe that the prosecutor general be a person with deep knowledge of the law, completely impartial and respected by his peers and by society in general.
by his persecution of Beatrice Mtetwa, his protection of Jane Mutasa, and his contempt for judicial orders, it is clear that tomana is not in any way fit for the post of pg.
sadly it is mr mugabe who decides these important issues, based solely on his own personal whims. and he seems fond of tomana.
What kind of man rapes a 11 year old girl at gun point? Was he afraid that she could bite him? And after that runs to the PG for protection. Forget the rape , cut his p…nis off and lock him and his protecter for the rest of the lifes in a small cold prison cell , with one blanket .
DO WHAT! THE GORILA DOESNT KNOW THAT!
My word, in most normal countries he would have been fired just for his opinions and statements let alone his action or inaction in this case, he would be registered as a sex offender and proberbly have his home searched for child porn.
My My Zimbabwe what a fall from grace, from once the proud newest independant state, reduced to a bunch of lying, manipulating, cheating beggers, your people must be proud living off the handouts from the west. Pasi ZANU-PF, Pasi Njongwe.
Are we supposed to be surprised by such behaviour from Zanu?
He is well and truly on the gravy train, so even if he is forced to resign, he probably has a commercial farm to fall back on. So unfair, when the majority of Zimbabweans live in squalor.
I am sure that Tomana accepts his complicity in the degraded system of justice that he serves. In my view the original architects of this system are Robert Mugabe, for obvious reasons, and Patrick Chinamasa. The milestone event? Patrick Chinamasa, then as Attorney General, accepted a seat in cabinet, politically compromising the office, as a reward for declining further prosecution of Willowgate suspects, after the award of a Presidential pardon to the recently convicted Frederick Shava. It is justifiable and sometimes gratifying to be able to rant against Robert Mugabe et al. Are we not equally complicit? Are we not all Victor Frankensteins? At best a case of good men doing nothing at worst complicit in our own undoing as by the time we accepted the flaw in the political culture Robert Mugabe created it was too late.