It reinforced a view held by many that he is not suitable for the office he was appointed to and that he has by his declarations and by his conduct reinforced the view that his political affiliation has rendered him unfit for the office.
When an office such as that of AG receives complaints of uninvestigated and unprosecuted cases of alleged murders, he has a duty to investigate and take appropriate action before going to the media describing such a complaint as “a love letter”.
It is callous and shameful for anyone to dismiss crimes this serious with the kind of contemptuous politically laced language that oozes from the story that was in the Independent.
I truly hoped that he could and should have found language and a response more in keeping with the seriousness, judiciousness, dignity and impartiality expected of the holder of his important office.
It is a fact known to him that none of the deaths listed have been investigated and charges laid. It is also a fact that in many of the cases the alleged killers and torturers are known and have been named. What has not happened is impartial and professional investigation.
In terms of Section 76 (1) of the Constitution of Zimbabwe the AG shall be “the principal advisor to the Government”.
He is specifically excluded from Public Service membership to give his office independence. He obviously has many to convince that he is independent.
In terms of the constitution, the AG must take an oath of loyalty and office which bind him to “…be faithful and bear true allegiance to Zimbabwe and observe the laws of Zimbabwe” and to “well and truly serve Zimbabwe in the office of Attorney-General”.
This excludes allegiance to a political party.
In terms of Section 76 (4): “The Attorney-General shall have power in any case in which he considers it desirable so to do… to institute and undertake criminal proceedings before any court”. What this gives him is power to prosecute any case without legal hindrance.
In terms of Section 76 (4a): “The Attorney-General may require the Commissioner-General of Police to investigate and report to him on any matter which, in the Attorney-General’s opinion, relates to any criminal offence or alleged or suspected criminal offence, and the Commissioner-General of Police shall comply with that requirement.” (This goes back to 1989 and was last amended in 2007 by Amendment No 18).
The AG has routinely refused to exercise this power despite many demands by lawyers acting for complainants and concerned NGOs.
The case of Tomana’s refusal to prosecute Jane Mutasa and at the same time refusing to issue a certificate which would entitle the complainant to institute a private prosecution is a recent example.
As is clear from Section 76 subsection 4(c), the AG has the power on his own and in the case of a reasonable complaint, I submit, he has an obligation to require the Commissioner-General of the Police to investigate and report on any matter of alleged criminal offence. The Commissioner-General has no discretion once required by the AG.
It being clear that the AG has the power and that two years on, victims of crimes have not seen justice, it is tragic that a complaint as serious as the one served on the AG triggers a partisan, contemptuous and politically biased response.
When he spoke as he did, Tomana would have been well aware of the provisions of the Constitution of Zimbabwe.
When he mocked the complaints filed by the MDC in respect of the alleged murders of about 200 people, he too would have been well aware of the above quoted provisions of the Constitution of Zimbabwe. It is not a light decision to seek the AG’s intervention, because of his publicly avowed political allegiance, but while he holds the office of AG, he has a constitutional duty to abide by the functions of his office.
In conclusion it must be said that the quoted responses hardly answer the complainants in fact or in law. It is hard to characterise this behaviour without degenerating into political insults typical of Zimbabwean politics.
As a professional one can only be embarrassed to the point of simply saying –– what a shame! Zimbabwe has sunk very low over the years, I never realised how low till I read this sad synopsis of utterances by the AG. Very sad indeed!
l Bere is a lawyer in Harare and a member and holder of office in many organisations. His views in this article are personal.