The basis for the appointment of the team is the leaking of United States diplomatic cables by the whistleblower website, WikiLeaks, whose contents have been deemed treasonous by President Robert Mugabe’s Zanu PF acolytes.
What is evident from the move to appoint the team, to comprise five lawyers, is that Tomana, who has been a willing tool in past frivolous cases, has seen a chance to frustrate a possible campaign by Tsvangirai and other MDC members if elections are held next year.
It is the selective nature of the probe which is worrying. The cables raise serious allegations of diamonds plunder by the elite in government, but Tomana, one could be forgiven for concluding, is not interested in instituting an enquiry into that matter. Plunder of diamonds has serious ramifications for our economy and is a matter Tomana should have prioritised rather than a cable based on an ambassador’s personal opinion after meeting Tsvangirai. Is it not Tsvangirai’s constitutional right to express his views privately on the state of affairs in the country?
The appointment of the team of inquiry could also be aimed at creating an opportunity to end the Government of National Unity (GNU).
Zanu PF has in the past two months been working hard to destroy the political arrangement and the release of the cables has presented them with a pretext and an instrument with which to make mischief.
“From a legal perspective it would be folly,” lawyer Beatrice Mtetwa has said. “When it comes to witnesses, are they going to call back the former US ambassadors? The cables are based on opinion, not fact. There are a host of legal problems.
“But I’m not going to say it’s unlikely because the Attorney-General has been known to chase rainbows before. He was put in the position for that particular reason.”
Tomana’s record as the AG is punctuated by a failure to separate politics from the law and he has been taking cases which a first year law student would decline as it would be obvious there was no chance of success.
One case that comes to mind is that of Peter Hitschmann and Roy Bennett, another treason trial, where one of the witnesses called was said to be a computer expert but turned out to be a complete ignoramus in that field.
There could be a repeat of the same farce as it is very clear that there won’t be witnesses to testify unless it is possible to call the former US ambassadors to court. Modern international law gives protection for diplomats and chances of successfully summoning any of the ambassadors mentioned in the cables are zero.
Apart from presenting legal problems, the appointment of the team would be an open exploitation of a situation with the intention of not doing anyone any justice but merely seeking an advantage over a political adversary.
It is clear that the commission to be appointed after only 10 out of 2 998 cables on Zimbabwe have been released would be done on the basis of what is there. It is difficult to see how a commission could proceed when no one knows what the contents of the remaining leaks are.
Until the appointment of the commission, we can only speculate what the terms of reference would be and how it would proceed. It would also be interesting to see how the appointment of the team would be done, especially against the background of other more pressing commissions which have been made redundant. The Human Rights Commission is only there on paper, the National Healing and Integration commissioners have complained that they are not even aware of what is expected of them, and in broadcasting the only voice heard across the land is President Mugabe’s.
The commissioners could very soon find their mandate challenged on elementary legal grounds which will reflect very poorly on them. It would be interesting to hear from Tomana when another commission will be set up to investigate allegations of diamonds plunder raised by the same cables.