'Tomana ouster not easy'

HARARE - Controversial First Lady Grace Mugabe faces legal hurdles in her mission to have error-prone prosecutor general (PG) Johannes Tomana expelled for his age of consent statements with legal analysts saying the Constitution virtually protects him.

According to the Constitution, the PG is appointed in accordance with Section 259 to be head of the National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.

Section 187 states that Tomana can only be removed from office for inability to perform duties owing to mental or physical incapability, gross incompetence or gross misconduct.

But to do so, the Judiciary Services Commission (JSC) should first of all advise the president that his removal needs to be investigated.

Once this is done, the president will then appoint a tribunal to inquire into the matter.

Lovemore Madhuku, a University of Zimbabwe (UZ) law professor said the statements made by Grace in Kadoma recently where she called for Tomana’s removal from office were made by someone who did not understand the law.

“The statements emanated from an ignorant person. She demystifies the country because she shares the bedroom with the person who leads the country,” Madhuku said.

He dispelled fears that the remarks made by Grace who has become very influential in the following her “bedroom coup” which resulted in the purging of ex-vice president Joice Mujuru and her allies.

“The president can only act if there is something from the judiciary. If it is the Chief Justice then the president can consider but any other judge must come from the Judiciary Services Commission.

“In Tomana’s case, he is alleged to have made statements which he denies and that is not sufficient to have a person removed from office,” he said.

“It is not enough to make a case but the only problem is that he made his views public but it is the same position that many public officials share only that they do not make their views public,” he added.

The UZ lecturer also warned that public utterances criticising the office of the PG must be circumspect.

Jacob Mafume, a lawyer who is also spokesperson for MDC Renewal team said Grace could still influence the PG’s ouster politically.

“This is probably the reason why Mnangagwa(Emmerson) went on to announce an NPA board soon after the Kadoma meeting.

“This board may actually come in with a hostile attitude and recommend his ouster but then again Tomana chairs that board.

“Another scenario could be that he might also use the law to hold onto his post but he might end up being a lame-duck prosecutor who may not be able to prosecute party heavy weights.

“However, Tomana may be in a catch 22 situation as Zimbabwe is not a mature democracy where due processes are followed, otherwise his ouster will be a long winding process.

Obert Gutu spokesperson of the mainstream MDC said it was not legally possible for the First Lady to stand up at a political rally to announce that Tomana would be fired.

‘’The PG ranks pari pasu, ie at the same level, with a Supreme Court judge and therefore, there are certain constitutional provisions that have to be followed before Tomana can be fired.

“Cabinet ministers can be fired at any time by the President and the President is not even obliged to give any reason for dismissing a Cabinet minister.

“However, the PG cannot, just like a judge, be dismissed from office without invoking the provisions of Section 187 of the Constitution,’’ Gutu said.

Women and child rights activists welcomed the call by the Zanu PF Women’s League boss to have Tomana fired.

Nyaradzo Mashayamombe, director of Tag a Life, a child rights organisation welcomed the Grace’s views saying that Tomana’s views were a flagrant violation of the Constitution.

“I’m happy that a public figure is looking into it.

“He was out of line and we hope those he reports to take action.

“What he was recommending is against the Constitution,” Mashayamombe said.

Comments (11)

There is no one who cannot be fired in Zimbabwe perhaps with Mugabe being the only exception. Anyone can be fired, no constitution required. For example Tomana can be told by faceless people to resign and within a day he will be history without any constitutional impediment.

MBODZA - 5 July 2015

That board will pass a vote of no confidence on Tomana. Under the current system there is no law to talk about. Any time is tea time. In Prof J.Moyo's famous phrase," he who appoints can also disappoint.

X-MAN IV - 5 July 2015

is he senior than Mujuru??, if not, then if Mujuru cud b fired, who is he??

truth - 6 July 2015

What Grace says is what happens,people should not be put to bed by these so called law lecturers.Mugabe has the wisdom to manipulate all the systems,be it party or government.Mind you that Grace is the wife to the president.Who on earth does not follow the wife's advise for the sake of family tires?The same law lectures will give an excuse when she has succeeded to say she used section so and so to fire Tomana when it is too late kkkkkk.Do not be fooled by these Zanu law lecturers and you bask on the sun shine with your knees up Mr Tomana.Make hay while sun shines Mr Prosecutor.Mark my words

Maguramiti - 6 July 2015

If Tomana's statements were misquote,its unfortunate.Being fired by the ruling party is quite easy.Lets weigh the firing of VP and PG,the latter's(VP) case was never heard in court.The quoted act by law academics clearly talks of gross negligence and incompetence.By Zanu PF standards,this is enough evidence to sack the PG.

Murambwa - 6 July 2015

Prof Madhuku I think you are educated but not learned. It boggles my mind that up to now you can not differentiate between a political statement and academia issues. You have run out of esteem prof. If you have nothing to show for your ignorance please keep quiet. I used to admire you before I got my Phd. I now realise that you make a lot of noise for nothing and your analysis lacks substance. Maybe your audience is failed o'levels. I expect something better from a person like you. zimfuture@gmail.com

Jabu - 6 July 2015

Tomana will simply be asked to "voluntarily Resign " period.

Chidembo - 6 July 2015

according to the current law codification act which is still in force because it hasn't been aligned with the new constitution, Tomana was right.

adzooo - 6 July 2015

Pro you are forgetting your own lectures. In jurisprudence you taught us that the law can be saying this but practice pointing to another. in other ways you did say clients should be advised that the law says this on certain issues but the client should also be told that in practice what will happen is not what the law says. the law can be manipulated in this country the constitution is not sacrosanct in our jurisdiction.

LAW STUDENT - 6 July 2015

Remember Anthony Ray Gubbay, the former Chief Justice of the Supreme Court of Zimbabwe. He served in the position from 1990 to 2001, when he was forced to take early retirement and replaced by Godfrey Chidyausiku. Even under our previous constitution, a chief justice could be removed only after an independent tribunal has been convened to investigate charges of misconduct. I never heard of any tribunal being set for him.

haiwavo - 7 July 2015

Instead of focusing on firing the PG as a person people should discuss the role of the PG's office and how it can be made impartial and accountable. Does the independence of the office of the PG mean he can refuse to prosecute his friends, relatives and superiors? Does it mean the PG can prosecute his enemies and opponents with impunity? If the PG refuses to prosecute what should the complainant do to seek justice? Is the PG the prosecutor,judge and the jury all in one? If the PG makes a mistake in prosecuting who should correct that mistake. The PG, though independent should not be above the law and must be made accountable to another office for the sake of justice. These are the relevant issues which need to be discussed and resolved following Tomana's utterances and recent actions.

Concerned - 7 July 2015

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