PROSECUTOR-General (PG) Johannes Tomana, who has been weathering heavy political and legal storms with an apparent cloak of invincibility since his appointment in 2008, appears to be eventually facing his comeuppance from the Constitutional Court (ConCourt) whose recent ruling casts serious doubt on his fitness to remain in office.
Tomana has become vulnerable, especially after serious threats of a 30-day jail term and being banned from legal practice forced him last Thursday to finally issue private prosecution certificates to aggrieved parties, among the cases being one involving Bikita West legislator Munyaradzi Kereke accused of raping a minor at gunpoint.
This followed a recent ruling by the full bench of the ConCourt, headed by Chief Justice Godfrey Chidyausiku, that found Tomana guilty of contempt of court after they dismissed his ex-parte (a decision reached by a judge without requiring all of the parties to the case to be present) application seeking to have constitutionally unfettered prosecutorial powers.
Tomana had steadfastly refused to grant one Francis Maramwidze a private certificate to prosecute Kereke over allegations of raping his relative’s 11-year-old daughter. He also denied telecommunications firm Telecel a certificate to privately prosecute its former board member, Jane Mutasa, over alleged misappropriation of airtime amounting to US$1,7 million, but Telecel has since indicated the parties had reached an out-of-court settlement.
Instead of granting the certificates, Tomana had stubbornly ignored High Court and Supreme Court orders. He then had the temerity to make a ConCourt application seeking to have unfettered prosecutorial powers.
In all this, Tomana looked like he could just get away with it as he even had the backing of Presidential spokesperson George Charamba who said last week that government would study the court ruling with a view to resolving what he said were contradictions in the constitution over the power and the rights it gives to individuals and state institutions in such matters.
“The matter before us is much more complicated than has been framed in the media. It goes beyond the parameters of institutions in question and it certainly goes beyond behaviours of persons involved. There are fundamental principles that are at stake and the remedies may go beyond actions by the conflicting institutions…The legislature is exercised by the same matter and a solution might emerge from multiple perspectives not any one actor,” Charamba said.
However, Chidyausiku and the rest of the ConCourt had been very clear in that ruling that 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.”
While he may have complied with the latest ConCourt ruling, it is clear that his already shaky reputation has been further damaged by the case, perhaps mortally. His belated compliance does not change the fact that he has been found to be in contempt of court, hence his fitness for office is being called into question.
During talks over a coalition government in 2008, which was to be formed in 2009, the MDC formations identified Tomana as a stumbling block to the delivery of justice, questioning his impartiality as they believed he was biased in favour of the ruling Zanu PF.
His removal was often described as an “outstanding issue of the Global Political Agreement” which gave birth to the unity government, but he weathered that storm, as he did again this year when increasingly influential First Lady Grace Mugabe bayed for his blood after he suggested that girls as young as 12 years old should be legally allowed to consent to sexual intercourse.
The ConCourt ruling has, however, provided the most solid legal and constitutional grounds for Tomana’s removal than any of the previous situations that had strong political dimensions.
Section 260(1)(b) of the constitution 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 his or her duties. But Tomana attempted to deny Telecel and Maramwidze their fundamental rights by refusing them a right to be heard in court. Crucially, he showed serious contempt of the courts, drawing stern rebuke from Chidyausiku.
According to lawyer and academic Alex Magaisa, Tomana is now vulnerable “on these grounds that the PG falls short of the standards required of a person occupying that office”.
“Can the public have confidence in a person who is prepared to and has been found by the highest court in the land to be in violation of the Constitution and the rule of law? Does he still have the moral authority to prosecute other persons for violating the law of the land when he himself has been found guilty of violating the highest law of the land?” queried Magaisa. “It is hard to find an answer to these questions in the affirmative. The PG has been found to have wilfully disobeyed the Constitution and court orders.”
Following the issuance of the private prosecution certificate, Kereke last week went to court to further thwart prosecution. This week he won a temporary reprieve against private prosecution as the ConCourt will on November 18 determine the constitutionality of the statute allowing for private prosecutions. Kereke’s action has been taken by many as a sure sign that he is unwilling to defend himself in court for whatever reason.
However, should he lose his case after being successfully prosecuted, that may well open a Pandora’s box, releasing an avalanche of more private prosecutions by individuals aggrieved by years of systematic human rights abuses mainly perpetrated by political party activists and state security agents on the civilian population.
In the post-Independence era, Zimbabwe which attained majority rule in 1980, was rocked by the 1980s Gukurahundi upheavals during which 20 000 civilians are believed to have been killed in the Matabeleland and Midlands provinces mainly by security forces during operations against dissidents. Nobody has been brought to justice and government has persistently refused to apologise or take any action.
There has also been political violence after 2000, the worst of which was probably in 2008 after President Robert Mugabe’s first round loss in the presidential election to MDC-T leader Morgan Tsvangirai. Since then MDC supporters and other civilians have tried in vain to have the alleged perpetrators, who include state security agents, prosecuted.
Hundreds of thousands of civilians who were subjected to violence and loss of valuable property during government’s nationwide slum clearance exercise dubbed Operation Murambatsvina of 2005 may well seize the opportunity to bring individuals to trial.
In fact, hopes for local justice in terms of the Zimbabwe Human Rights Act were extinguished after political parties agreed that the independent commissions could not investigate cases of abuses that took place before 2009.
Similarly, the Rome Statute, which informs the operations of the International Criminal Court, has a cut-off date that makes it impossible to prosecute cases which occured before 2002.
Even more significantly, the Tomana issue has complex, underlying political dimensions. There is belief Kereke and Tomana are part of Vice-President Emmerson Mnangagwa’s faction in the long-running battle to succeed Mugabe.
As such the view is that this unfavourable ruling represents a serious setback for the camp which has already seen off former vice-president Joice Mujuru and is currently locking horns with the Generation40 group of young Turks in Zanu PF who reportedly enjoy the support of Grace, perceived to have political ambitions of her own. Grace has made no secret of her dislike for Tomana and earlier this year she publicly called for his ouster for suggesting the lowering of the age at which young girls can legally consent to having sex.
“You will see the person saying such things, but later to say that I was misquoted — why were you saying that in the first place? We will hit you with clenched fists. I, Mrs Mugabe, I will kick him,” Grace said of Tomana while addressing a rally of Zanu PF supporters in Kadoma in July that included Mnangagwa.
“That’s stupidity. That’s insane and I think the person has a rotten mind. In English, we call that person a paedophile,” she added.
Academic and publisher Ibbo Mandaza said while Tomana may not necessarily be part of any faction, the fact remains that as former Attorney-General and currently PG, “he has had to defer to Mnangagwa who was his superior as Minister of Justice”.
Kereke’s setback is also seen as being that of Mnangagwa, who was fighting in parliament to amend the law to save the PG and reportedly Kereke.