HARARE – Vice President Emmerson Mnangagwa (pictured) has asked Parliament to approve a controversial change to the Criminal Procedure and Evidence Act, giving the Prosecutor-General (PG) Johannes Tomana wide discretionary powers to withhold private prosecution certificates in a vast range of circumstances.
The law previously allowed private parties to personally lodge criminal charges against any offending party even if Tomana did not wish to pursue charges.
This comes after Chief Justice Godfrey Chidyausiku with the full complement of the white-wigged Constitutional Court (Con-Court)bench, in an unprecedented step, blasted Tomana’s refusal to comply with a court order to issue a private prosecution certificate for Munyaradzi Kereke to face trial for allegedly sexually assaulting an 11-year-old girl five years ago, and committed the PG to 30 days in prison for defying court orders by the High Court and Supreme Court that he issues the certificates.
The 43-year-old Rock Foundation Medical Centre founder has relied on Tomana to stall efforts to stand as a defendant in court charged with the 2010 alleged rape of the 11-year-old girl at gunpoint.
The girl, represented by gritty Harare lawyer Charles Warara, had won two court orders for Kereke to be privately prosecuted but Tomana had defied the court decrees.
But after a sharp reprimand from the Con-Court, on November 4, certificates nolle prosequi were issued by Tomana’s deputy Florence Ziyambi on behalf of the PG and on his instructions. In an obvious response to the Con-Court’s decision, Mnangagwa tabled an amendment in the National Assembly proposing a comprehensive re-enactment of Section 16 of the Criminal Procedure and Evidence Act giving the Prosecutor-General the power to withhold such certificates in a wide range of circumstances.
“I move that the ... Criminal Procedure and Evidence Amendment Bill be recommitted in terms of Standing Order Number 153 (1),” Mnangagwa told the National Assembly on November 18.
“It means that we recommit the Bill back to the order paper so that we can have the amendments that have been proposed to appear in the order paper. That is Parliamentary procedure.”
In his Constitutional Court application, Tomana argued that he was the only person with the discretion to issue a certificate for private prosecution. He argued that his decision was not subject to any review by the court.
But the Con-Court rubbished his argument, noting that Section 164(3) prescribes that a court order must be obeyed by the State and all persons and governmental institutions and agencies to which it applies.
The amendment tabled by Mnangagwa also excludes companies from bringing private prosecutions, overturning the Supreme Court’s decision on that point in the Telecel case, at least for the future.
Telecel dragged Tomana to the High Court for dropping charges against businesswoman Jane Mutasa, arrested in March 2010, after allegedly swindling $750 000 airtime from the mobile phone operator.
Mutasa, a senior member of the ruling Zanu PF, was controversially cleared together with her PA Caroline Gwinyai, Telecel’s regional sales manager Charles Mapurisa and commercial director Naquib Omar after Tomana flatly refused Telecel permission to pursue a private prosecution against Mutasa, who sat on the company’s board.
In a letter dated April 23, 2010 sent to Telecel’s lawyers, Tomana said: “Kindly note that I have read the witnesses’ statements in the police docket and have satisfied myself that the evidence therein does not establish a criminal offence against the four suspects.
“In the circumstances, I find it contra bono mores (against good morals) for me to grant my certificate in this matter. In essence I, therefore, withhold my certificate of Nolle Prosequi (decline to prosecute) and decline to issue the same.”
Godfrey Mamvura of Scanlen and Holderness — Telecel’s lawyers — approached the High Court, arguing Tomana misdirected himself when he withdrew charges against the four.
Mnangagwa said on Thursday that the change ensures that any court order compelling Tomana to issue certificates nolle prosequi was an infringement of the independence conferred on the PG by section 260 of the Constitution, which states that the “Prosecutor-General is independent and is not subject to the direction or control of anyone.”
These were the same arguments kited by Tomana in his ex parte application in the Con-Court. An ex parte application cites no-one else as a respondent, defendant or opposing party. But leading constitutional law expert Tererai Mafukidze and Zimbabwe Lawyers for Human Rights, who applied to the court and were granted permission to take part in the case as amici curiae or friends of the court, implored the court to reprimand Tomana.
“The application (Tomana’s) is frivolous and vexatious and constitutes an abuse of the process of court. It is so lacking in merit that it is deserving of the most serious censure,” Mafukidze argued.
Despite sustained campaigning over the past year, the opposition has failed to have any impact on the government, which even before coming into office in 2013 was not keen on prosecuting the Zanu PF officials.
Lawyer and opposition lawmaker Obert Gutu said Mnangagwa’s motion was highly objectionable and unconstitutional.
“You can understand that Vice President Mnangagwa is trying to circumvent the full impact and effect of the recent Constitutional Court ruling on the Munyaradzi Kereke saga,” Gutu said.
“He is trying to render the ruling by the Con-Court a brutum fulmen, (a court order that’s incapable of being enforced). We urge parliamentarians, including Zanu PF legislators, to thunderously reject this backdoor and nefarious attempt to defy the ruling of the Con-Court. In fact, VP Mnangagwa’s wicked plan should be shot down at the level of the Parliamentary Legal Committee. This plan is not only grossly unconstitutional but it is also tantamount to an unmitigated attack on the independence as well as the integrity of our judiciary. Mnangagwa’s plan stinks to high heavens.’’
Jacob Mafume, a lawyer and spokesman of the opposition PDP, said the independence of the Prosecutor-General was not that he becomes the sole judge of who gets criminal redress in the courts but it was that he operates independently in a rational manner.
“In this case, where the Prosecutor-General is behaving irrationally, surely citizens must seek redress from the courts, or better still, bypass him and get protection from the court where they have been criminally wronged.”
He added: “What he (Mnangagwa) has done is to spread presidential immunity to himself and his friends before he even assumes power.
“Imagine when he eventually does assume power, there will be an orgy of raping, stealing, even murder, with these people knowing they have the Prosecutor-General in their pockets.”