Tomana receives 30-day jail term

HARARE - Prosecutor-General Johannes Tomana has been slapped with a 30-day jail sentence by the Constitutional Court for defying orders by the courts to authorise the private prosecution of rape-accused Zanu PF legislator Munyaradzi Kereke and businesswoman Jane Mutasa.

Fortunately for Tomana — who was recently in the eye of a storm over his controversial views on child marriages — the stunning prison term was suspended on condition that he complies with the court orders within 10 days.

“The applicant is committed to imprisonment for a period of 30 days, the whole of which is suspended on condition that the applicant complies with the (above) orders of the High Court and the Supreme Court by issuing the requisite certificates nolle prosequi within 10 days of this order.

“In the event the applicant fails to comply with this order, he shall be in his personal capacity barred from appearing as a legal practitioner in Zimbabwe,” Chief Justice Godfrey Chidyausiku ruled yesterday in a unanimous judgment made together with eight other judges of the Constitutional Court.

The ruling came after Tomana approached the highest court in the land challenging recent judgments of the High Court and Supreme Court compelling him to issue certificates for the private prosecution of Bikita West MP Kereke — who stands accused of raping an 11-year-old girl — as well as that for Mutasa, who is accused of defrauding Telecel Zimbabwe of $1,7m in airtime.

Tomana argued before the court that he had the sole discretion to issue a certificate for private prosecution, adding that his decisions were not subject to any review by the courts.

However, Chidyausiku — who did not have kind words for Tomana — disagreed strongly saying the Prosecutor General was in effect abusing his powers to protect law transgressors.

“This is an officer of the court who deliberately disobeys a court order. It’s not something that this court will take lightly.

“It is not desirable to give the Prosecutor General a blank cheque. A court order was disobeyed by a very senior government official who is supposed to uphold the law,” Chidyausiku said.

The Chief Justice added that there was no guarantee that Tomana was going to comply with future court orders, having defied other rulings before — further emphasising that he had to comply with court orders first before lodging his dissatisfaction.

Chidyausiku also said that it was not for the litigant to choose which laws to obey, adding that the two cases had nothing to do with national interest that might have warranted Tomana to decline the issuance of the private prosecution certificates.

Tererai Mafukidze, who appeared as a friend of the court together with David Hofisi on behalf of the Zimbabwe Lawyers for Human Rights, argued that Tomana was just buying time by filing the Constitutional Court application.

The matter was heard following the dismissal of an earlier request by Tomana to have the case postponed, arguing that there was an amendment bill pending in Parliament seeking to clarify Tomana’s discretionary powers on the matter.

But the court said that it was improper to wait for the outcome of a parliamentary process, adding that the House of Assembly in any event would not allow Tomana to defy a court order.

However, Tomana’s censure yesterday may prove to be short-lived as the National Assembly adopted a clause last week providing that the Prosecutor General cannot be compelled to issue such certificates for private prosecutions should he decline to charge an accused person.

Vice President Emmerson Mnangagwa, who steered the Bill through Parliament, said the strong objection to the clause by the MDC lacked merit because the PG could still issue a certificate of private prosecution if he saw it fit.

Clause Six of the Bill says no one can institute a private prosecution unless the PG has issued a certificate, stating that he did not intend to prosecute the case in the name of the State.

“This clause will remove any suggestion that the Prosecutor General is compelled to issue such a certificate. It also prohibits any corporate body, registered or unregistered association from applying for or receiving such a certificate,” it reads further.

MDC legislators objected vehemently to the provision which they said set a bad precedent.

A few months ago, First Lady Grace Mugabe, children’s rights activists and women’s organisations called for Tomana’s removal from office over his controversial views on child marriages.

Tomana had said, rather ill-advisedly, that girls as young as 12 must be listened to by the courts if they wished to start families with older men, because they were capable of consenting to sex.

He was also quoted by State media implying that he did not have any problems with child molesters who escaped prison and got away with community service sentences serving their punishment at schools where they had potential to abuse other children.

Comments (16)

What is the job description of the Prosecutor General? The country is reeling under so much corruption and yet Tomana is sleeping on the job. The Auditor General is doing so much to unearth cases of corruption but no one in the Justice ministry cares.

James ngwenya - 29 October 2015

What is the job description of the Prosecutor General? The country is reeling under so much corruption and yet Tomana is sleeping on the job. The Auditor General is doing so much to unearth cases of corruption but no one in the Justice ministry cares.

James ngwenya - 29 October 2015

What is the job description of the Prosecutor General? The country is reeling under so much corruption and yet Tomana is sleeping on the job. The Auditor General is doing so much to unearth cases of corruption but no one in the Justice ministry cares.

James ngwenya - 29 October 2015

all transgressors to be put on book please not only Tomana but everyone corrupt

BRIGHTON NTINI - 29 October 2015

well done courts for showing a bit of seriousness, tomana is a politician who sees his office as political

BRIGHTON NTINI - 29 October 2015

Chidyausiku rules on what favours his master . He is the biggest culprit in Zimnbabwe legal fraternity . To mana will be punished for political reasons . The constitutional ruling has nothing to do with justice as purported. This is the ZANU of wars spilling in the courts.

Bewarned - 29 October 2015

Who can come to our rescue . Our President is falling at conferences. Our Prosecutor general is a criminal . Parirenyatwa health minister is a thief . he embezzled public funds. the list is endless

Directionless - 30 October 2015

People, people, Mugabe must go and rest now. It's really sad, I have just watched the clip when he almost fell in India, oh gosh he cannot even walk, the guy is struggling to put together 5 steps, I am a big critic of mugabe but I got to the extent of feeling sorry for him, I mean he can no longer walk, it's not embarrassing anymore it's actually sad. Please grace Mugabe allow you husband to rest, please!!!!!

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