HARARE - Prosecutors handling the case of Prosecutor-General Johannes Tomana — charged with abuse of office and obstructing the course of justice — were yesterday taken to task why the top prosecutor must remain on remand.
Tomana’s charges arose after he withdrew charges against two men accused of plotting to bomb President Robert Mugabe’s dairy plant.
In an affidavit filed on February 16, Tomana said attempts to prosecute him were ultra vires the new Constitution which gives him authority to discharge independently any functions necessary for prosecution, and applied that he be discharged from remand.
Regional prosecutors Gwinyai Shumba and Timothy Makoni filed written submissions opposing Tomana’s bail application but did not address legal aspects that had been raised by the defence.
“The decision by the prosecutor-general to withdraw charges preferred against one or more of the accused persons should have been made after assessing evidence gathered by the police and not just decide to favour one accused person over the other,” argued the prosecutors.
Tomana’s lawyer Advocate Thabani Mpofu said the validity of the arrest has not been addressed, adding “the prosecutors don’t suggest that they have any authority from any other person to conduct these proceedings and have not shown whether, if proved, the circumstances constitute an offence.”
“We have led evidence demonstrating that it was a deliberate exercise of prosecutorial functions (by Tomana) and yet the prosecutors’ response is adequate on two fronts. It does not respond on critical and key functions advanced.
“…there has not been a proper response.”
Harare provincial magistrate Vakayi Chikwekwe called into question the evidence of the investigating officer Thulani Ncube who confirmed that Tomana’s arrest was subject to his instructions.
This was after Ncube was probed by Tomana’s lawyer to name the entity standing as the complainant in this case.
“The head of State was compromised in particular and according to section 174 of the Criminal Procedure and Evidence Act, it was lawful to arrest anyone who committed a crime of that nature,” Ncube said.
Chikwekwe asked the prosecutors to justify if they had authority or entitlement to appear against the government’s top prosecutor.
The prosecutors responded by outlining their professional qualifications before the matter was postponed to February 22 when ruling on Tomana’s bail application would be made.
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.
Makumbe, a member of the Zimbabwe National Army and Pfupa, a former soldier are jointly charged with Owen Kuwacha, leader of Zimbabwe People’s Front political party who has been jailed for nine years and Borman Ngwenya, who is also employed as a soldier.
The four, who were arrested on January 22, are facing charges of possessing of weaponry for sabotage and contravening the Money Laundering and Proceeds Crime Act. Their charge has since been elevated to treason.