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.