Push for Tribunal to probe Tomana

HARARE - Legal experts have unleashed a professional broadside against prosecutor-general Johannes Tomana, accusing him and his office of being riven by conflicts of interest, betraying professional standards, and calling for his immediate removal from office.

The experts are calling for an urgent tribunal to decide on the removal of Tomana from office after accusations that his conduct had led to a serious erosion of public trust.

Tomana was appointed under Section 259 of the new Constitution to head 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 Judicial Services Commission should first of all advise the president to appoint a tribunal to inquire into the matter.

Tomana was sentenced by the Constitutional Court to a 30-day prison sentence which was suspended on condition that he complies with a court order to allow for the private prosecution of former Reserve Bank governor Gideon Gono’s advisor and Bikita West legislator Munyaradzi Kereke, accused of raping a 11-year-old girl five years ago.

One of the co-chairpersons of the parliamentary select committee which crafted the new constitution, Douglas Mwonzora, said Tomana was now a criminal and should be relieved of his duties.

He said rarely in the history of any criminal case has a prosecutor so directly maintained so many conflicts of interest.

“For a person to hold the office of a judge, they must be a proper and fit person with integrity who has not been convicted of abuse of the law,” Mwonzora said.

“Well, in this case, he was convicted of contempt by the legal system that he must safeguard and enforce. He is no longer fit because of that conviction.

“He is now a criminal, must not hold that office. If he does not resign, he should be relieved of his duties.

“A tribunal must be set for this to happen. When we crafted the Constitution, we wanted to safeguard that office from the executive so we did not want it to be easy to remove a PG from office. He is no longer fit to practise as a legal practitioner, he must just resign. He is like a banker who has been convicted of theft.”

Tomana has however, argued that he exercised his discretion to refuse to issue a certificate of private prosecution under terms of  the National Prosecuting Authority Act.

Legal expert and analyst Alex Magaisa said Tomana was guilty of gross incompetence and gross misconduct.

“It is arguable that the conduct of the PG in these matters, involving violations of the Constitution and contempt of court, as held by the highest court in the land, constitute either gross misconduct or gross incompetence, or both and at the very least, warrant an investigation,” Magaisa said.

“The president has the power to set up an independent tribunal to investigate the allegations and the president is required to act in accordance with the tribunal’s recommendations. It is important to note in this regard that the constitutional standard for a PG, as with a judge, is whether he is a fit and proper person to hold such an office.”

Lawyer Terrence Hussein said Tomana had complied with the court order and should not be crucified.

“Well, for now, if one analyses the situation, the court gave him conditions to comply with and he complied with it, that should be the end of the matter unless something else crops up,” Hussein said.

Another lawyer who requested anonymity urged the Law Society of Zimbabwe to immediately write to the president.

“In fact, the Law Society should write to the president to set an inquiry to determine if  he is fit for office,” he said.

Comments (3)

Tomana must be demoted to a street cleaner. Academic qualifications without skills, professional competency and dilligence is meaningless.

Sure Mandenge - 10 November 2015

NPA front man appears to enjoy some special appointment relationship with mystic lineage. Who would condone what he is doing except.

John Gwizo - 10 November 2015

Tomana is compromised and no-longer fit to hold a public office. The way he handled Pro Nherera's appeal case as the then AG is a clear testimony of his unsuitability to occupy the PG's post.

chigas - 11 November 2015

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