Candid Comment: Tomana arrest an assault on constitutionalism

FOR all the brickbats that have been thrown in Prosecutor General Johannes (PG) Tomana’s direction over his conduct since being appointed Attorney General in 2008, where he assumed prosecuting and government advisory roles before he was appointed PG in 2013, his arrest this week on charges of obstructing the course of justice in a case relating to the alleged attempted bombing of President Robert Mugabe’s dairy, is yet another example of the wilful violation of the constitution.

Owen Gagagare

Tomana was arrested on Monday and spent the night in custody on allegations of criminal abuse of office or defeating the course of justice after he allegedly dropped charges on two suspects accused of plotting to bomb Mugabe’s dairy in Mazowe. He is out of custody on US$1 000 bail.

johannes-tomana

It should be noted that the country’s constitution passed in 2013, which created the PG’s position, guarantees the independence of his office.

The constitution also guarantees that he cannot be arrested for alleged acts of misconduct arising from the performance of his duties, unless the President appoints a tribunal, which if it finds him guilty, may pave way for an arrest or prosecution.

As pointed out by constitutional law expert Lovemore Madhuku, sections 259 and 260 of the Constitution contain provisions which make it clear that the arrest was unconstitutional.

“In the case of the Prosecutor-General, the decision of whether or not to prosecute was his alone under the Constitution. If anyone believed the decision was a criminal abuse of office, the only recourse in that circumstance was for the president to appoint a tribunal,” said Madhuku.

“The Constitution automatically places the Prosecutor-General on suspension immediately upon the appointment of a tribunal by the President. That is what ought to have happened in this case, not the arrest of the Prosecutor-General.”

Although many people in opposition circles celebrated Tomana’s arrest on the grounds that he caused the detention of many of their members without charge for long periods, while others pointed out he violated the constitution by refusing to prosecute Zanu PF legislator Munyaradzi Kereke over rape allegations and refusing to issue a certificate for his private prosecution, it should be noted that his indiscretions do not justify the violation of the constitution.

The arrest of a sitting PG should be seen by the public and the opposition for what it is – an assault on national institutions enshrined in the constitution — they all helped to create from 2009 to 2013.

If anything, it has proved that Zimbabwe still has a long way to go in respecting the rule of law which is sine qua non to any democratic dispensation.

Surely if the police can trash the constitution and arrest a sitting PG, what can they do to an ordinary villager who may not know their rights?

ogagare@zimind.co.zw

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