via Tomana offside on private prosecutions | The Herald September 9, 2015
THE Zimbabwe Lawyers for Human Rights, who were appointed as a friend of the court in a matter in which Prosecutor General Mr Johannes Tomana is contesting court orders compelling him to issue certificates of private prosecution, have described the challenge as an abuse of the court’s process. Mr Tomana’s ex-parte application, according to ZLHR, was strange, frivolous and vexatious and it must be dismissed.
The PG early this year filed the application seeking to bar the courts from interfering with his powers to decline prosecution.
This was after the Supreme, Constitutional and High Courts had directed Mr Tomana to issue out private prosecution certificates in cases where he would have declined public prosecution.
Telecel Zimbabwe won its case for private prosecution at the Constitutional Court in a case in which former chairman Dr Jane Mutasa is being accused of defrauding the mobile communication service provider of thousands of dollars in an airtime scandal.
The High Court also ordered Mr Tomana to issue a certificate for private prosecution in a case in which Bikita West legislator Dr Munyaradzi Kereke is being accused of raping a minor.
Mr Tomana was under-pressure to comply with the orders and lawyers representing the complainants in the matters have written several letters seeking the PG’s compliance, without success.
In the heads of argument filed by ZLHR in its capacity as amicus curiae (friend of the court), the lawyer said the application lacked merit.
“The friend of the court, Zimbabwe Lawyers for Human Rights, submits that this honourable court must decline to answer the question and dismiss the application.
“The application is frivolous and vexatious and constitutes an abuse of the court process. It is so lacking in merit that it is deserving of the most serious censure,” argued the lawyers.
ZLHR said the PG has defied court orders despite the provisions of the Constitution compelling everyone to comply with court orders.
“This application has not been invoked for the vindication of the Constitution. It has been brought as an attempt to divert justice from its true course so as to achieve an improper end.
“Notwithstanding final decisions of the courts, the PG has deliberately not complied with the court orders requiring him to issue the certificate nolle prosequi in two matters which we submit have motivated this strange application.
“This is despite that Section 164 (3) of the Constitution states that an ‘order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them,” the papers read.
The lawyers argued that the courts have ruled on the matter and that the Constitutional Court cannot be asked to hear an appeal against its own decision.
Mr Tomana, the lawyers argued, failed to fully disclose material facts of the matter, rendering the application defective at law.
The lawyers said the PG did not mention the two court judgments that he was uncomfortable with, which is a requirement in applications of that nature.
It was also argued that the PG’s application sought to place him in a position higher than the courts.
“The first fundamental effect of this application and the relief sought by the PG is to place his conduct and his office above the scrutiny of the courts.
“That is plainly untenable under our Constitution. It is worrying that this submission is even made,” argued ZLHR.
In the application filed at the Constitutional Court by Mutamangira and Associates, Mr Tomana wants the same court to declare that the issuance of certificates for private prosecution solely lies within the powers of the Prosecutor General.
Directing the Prosecutor-General to issue out a certificate of private prosecution (nolle prosequi), it is argued, was tantamount to a breach of Mr Tomana’s constitutional independence and protection from control of anyone.
Mr Tomana said the courts or any other arms cannot, at law, compel him to issue the certificate. He urged the courts to respect the separation of powers doctrine.
Mr Tomana argues that his exercise of prosecutorial discretion was not susceptible to judicial review. His decisions in that regard, the papers read, are beyond the province of the court’s review.
He submitted that the courts were in breach of the Constitution by compelling the PG to issue private prosecution certificates.