via ZLHR challenges Tomana – NewsDay Zimbabwe March 19, 2015
THE Zimbabwe Lawyers for Human Rights (ZLHR) yesterday filed a Constitutional Court application seeking to be heard during the court proceedings in which the Prosecutor-General (PG) Johannes Tomana has applied to have his jurisdiction over the issuance of certificate of private prosecution operate independently.
The ZLHR said the application brought by Tomana before the court had a major impact on the protection of human rights, freedoms guaranteed in the Constitution, the administration of justice and observance of the rule of law.
“The purpose of this application is to intervene in the exparte application brought before this court by the Prosecutor-General of Zimbabwe, under case number CCZ8/15. The Prosecutor-General purports to be bringing this application in terms of Section 167 (5) (a) of the Constitution,” ZLHR lawyer Irene Petras said in the affidavit.
“The application is very important because it seeks to take away or limit the right to institute private prosecutions outside the statutory limitations. It is therefore important that this court benefits from the submissions to be made by ZLHR on the merits of this application.”
The lawyers added: “The effect of the relief sought by the PG is to outlaw private prosecutions. The right to institute private prosecutions is contained in the Criminal Procedure and Evidence Act. The PG must first seek to have the relevant provisions declared unconstitutional. He has impermissibly proceeded with his application without attacking the legislation that entitles
citizens to institute private prosecutions.
“In effect, the application seeks to undermine and ultimately do away with the right to bring private prosecutions under the Criminal Procedure and Evidence Act, when the Prosecutor-General declines to prosecute certain cases.”
The lawyers further said in the application Tomana was seeking a determination of what he terms “the question of his constitutional independence and protection from the direction and control of anyone”.
However, the ZLHR said in the event that the court finds that it has no right to intervene in the matter, it would again seek an alternative relief, that is, an admission as a friend of the court (amicus curiae) in the matter in terms of Section 167 (5) (c) of the Constitution.
Tomana’s application came about after the Constitutional Court issued an order directing his office to issue Telecel Zimbabwe with a certificate to privately prosecute one of its shareholders, Jane Mutasa, over alleged fraud.
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