I'm not selectively applying the law: AG

HARARE - Madcap Manchester City striker, Mario Balotelli, whose prodigious talent compares in equal measure to his off-the-field antics, is remembered painfully by Manchester United supporters.

A day after setting off fireworks at his Cheshire rented pad, last season, the “noisy” neighbours’ striker lifted off his football shirt to reveal a message: “Why Always Me?”

He had just scored the opening goal at the Stretford End, Old Trafford, in his side’s 6-1 romp over United.

Here back home, the Attorney General (AG), Johannes Tomana, revealed his pain at being attacked by pro-democracy groups and Prime Minister Morgan Tsvangirai’s MDC officials every time his office handles cases involving their members.

“Why Always Me?” he also asks.

In a rare interview, Tomana, whose friends call him JT, told the Daily News of how he has been “abused” for doing what he sees as right but which is seen as wrong by those attaching labels to him.

“While the public is allowed to hold whatever views, we are instructed only to care about that which matter. If the public is talking about matters that are factually correct then yes, we do care and we must care.

“If they are wobbling in rumour for example, if they are ruminating around perceptions, if empty in terms of substance, we care less. Here we are obliged to do that which we speak.

“If we say this is what the law says and this is what must happen, everybody must expect us to do it like that,” Tomana said during an exclusive interview at his offices.

He said his prosecutorial mandate demanded that he does his job without being influenced by anyone.

Under Section 76, the AG is mandated to discharge his duties without fear, favour and prejudice.

“You find that when people are fed with information that is actually wrong, erroneous and unlawful they will force people to speak against the decisions that we are taking here.

“For example they are many prosecutions that we have undertaken but at the same time they have been numerous press reports against our decisions to prosecute and against our decisions to decline to prosecute.

“That is unlawful and that is against that constitutional provision. I am supposed to prosecute guided by the docket and law not by voices from outside. You can go as far back as when I started my job here. Virtually all cases I have had to talk about have actually been subjected to that kind of violation. It’s by God’s grace that I have stuck to my guns,” said Tomana.

He largely blamed the media for writing feverishly on cases he deemed sub-judice and taking an approach he claimed was as good as prejudging cases.

“The media has not played a constructive role to the extent that our office is insulated against that kind of behaviour by the law. We have been the most battered office, we have been the most charged office, we have been the most condemned office.

“We have sustained an accusation that says we are guilty of selective prosecution. Nobody has actually tried to inquire what that means and what law that is we are failing to observe. What does it mean when we say the discretion to decide to prosecute and to decide who to prosecute, and decide who not to prosecute and decide to continue with a prosecution or to discontinue with a prosecution?

“It’s a discretion that is conferred on me. And in deciding whether to prosecute or not, I am not guided only by the facts on the docket but I am supposed to be guided by public policy considerations.

“Those are the discretions we are supposed to exercise without being influenced by you guys (media) who are talking from either the point of your beneficiaries or the point of view of the person who has an interest in seeing certain things happening in a certain way regardless of the fact. We are being forced to look at crime in a differential way; for whose benefit?

That’s why we ignore that; it is talk for people that are not committed to doing anything about it.

“For us who must do something about it, we are obliged to see it as crime and treat it as such. That’s why we simply look at it like that and say no to that kind of behaviour. Politics; play it like politics, convince people using your capacity to talk”.

Tomana, since assuming office, has been savaged by the MDC and rights groups for allegedly punishing their members.

The AG has not denied media stories, in which he was quoted as saying he supports Zanu PF.

This has been used consistently to drive home accusations he applies the law “selectively”.

But he denies he is biased.

“Police are the ones who collect the evidence,” he said.

“I don’t go anywhere close to that. They are the ones who put together the docket. When it’s done they bring it to me. That’s the first time that I interact with the report. And then we interrogate the witnesses, we look at the witness statements to look at their adequacy or otherwise.

“We look at the other evidence that is there for the adequacy or otherwise. And if it measures up to a prima facie case and then our obligation is to take it before a court so that these witnesses and this evidence is presented before that court so that court makes a decision on whether or not an offence has been committed.

“If an offence has been committed on the basis of that evidence which will be given an opportunity to be tested; we don’t pre-empt anything ourselves here. We place it there so that it is tested publicly by the person whose interests are affected before an impartial tribunal and leave them to make a decision.

“How then does it become a Tomana issue? How do I select to pick of any of the accused when I am not the one who reports them? I am not the one who collects the evidence.

“How is it then possible that normal people find it very comfortable to say the Attorney General is biased, he is selective in his application of the law?” asked Tomana.

Tomana has been accused of colluding with the police to “punish” MDC supporters and they cite the murder of the late police inspector Petros Mutedza as a clear example.

Mutedza died during public disturbances at Glen View 3 shopping centre in 2011.

“Right now if you look at the case you are referring to (Glen View murder), that officer is not an issue, the issue is these people. If we have a dead body, a dead officer, why are you not worried about accounting for the culprit?

“Why are you people focusing on just saying these are the wrong people as if you know the real people? And if you know the real people why are you not telling us? Because I don’t dream them out, I wasn’t there when this thing was committed; even the investigating officer wasn’t there.

“We depend on information that responsible citizens give to us. If responsible citizens tell us, one, two, three, four, five, six are the people that were there, what do you expect us to do? Ignore them because they are pointing to people that belong to a political party?

“Because their label is politically-branded then we ignore the fact that there are allegations against them? If for example, they are not the correct people, have we not done the fair thing of presenting them before a tribunal that is independent to assess the allegations against them. Where are we culpable?”

The AG called the public to join in the fight against corruption, admitting that even his office has not been spared by the scourge.

“For my part, I have never denied that this office is also suffering from that. I have, however, encouraged government to make a real effort towards cushioning officers against the temptation as a first move. After that, we would have removed the excuse and it would be easier to get the general co-operation of everybody to clampdown on it.

“It’s not a blame game I think it’s a national problem that must be confronted by everybody who cares to see a better day. Our members of the public must themselves abhor corruption. They must not tend to people.

“They must see the wrongness of doing that. We have too many convenient people out there. It is a culture that we must work against. Yes there is corruption. We are discouraging it. We hope everybody else will work together not just to discourage but to remove and nip it.”

The AG refused to be blamed for the outstanding dockets and warrants of arrest which his critics have you used to slander his officer.

He said his office had issued the warrant of arrest for Central Intelligence Organisation (CIO) officer Joseph Mwale who was charged with killing Tsvangirai’s aides — Tichaona Chiminya and Talent Mabika in 2000.

“There is no MDC-T member who is not also a citizen of this country. And by the same token, being a citizen of this country, you are allowed to effect a citizens’ arrest on any criminal that you bump into.

“Challenge them to arrest and bring him before any office of the law and see if no action will not be taken,” said Tomana.


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