HARARE - Prosecutor-General Johannes Tomana yesterday challenged his placement on remand over charges of abuse of office and obstructing justice after he dropped a case against two men accused of plotting to bomb President Robert Mugabe’s dairy farm.
The top prosecutor said attempts to prosecute him were ultra vires the new Constitution which gives him authority to discharge independently any functions necessary for prosecution.
“It is an elementary principle of law and practice that I am entitled, as a matter of unfettered and unrestrained discretion, to choose whom to prosecute and whom to utilise as a State witness,” Tomana said in his affidavit lodged with the court.
“That function lies at the core of my constitutional mandate. I dare say that this is the be, all and all of my powers.
“…my placement on remand is highly irregular. It must be nullified retrospectively.
“Every time that I remain on remand the Constitution suffers an unwarranted violation. That must be brought to an end. Those behind this process must stop it!!
“How can I function independently, fearlessly and impartially when the police are free to arrest me for discharging a clear-cut prosecutorial function? The implication is that I can be arrested for something as innocuous as consent to bail.”
Prosecutor Timothy Makoni is expected to respond to Tomana’s application. Harare provincial magistrate Vakayi Chikwekwe will make a ruling on the application today.
According to Makoni, Tomana illegally ordered the release of Solomon Makumbe and Silas Pfupa, who are facing treason charges, before the police finalised investigations into the matter.
According to court papers, the four were placed on remand on January 25, before their request for remand placement forms were taken to the National Prosecuting Authority (NPA)
“On January 29, the accused person as the prosecutor-general well knowing that police investigations were still in their infancy and without having sight of a complete docket, clandestinely directed the withdrawal of charges before plea against two of the principal accused Solomon Makumbe and Silas Pfupa, who were resultantly released from remand,” the State outline claims.
Tomana’s lawyer Thabani Mpofu has said the new Constitution passed in 2013, which created the post of prosecutor-general, gave Tomana power over whom to prosecute.
He said the court had no authority to try Tomana.