HARARE - Prosecutor-General Johannes Tomana’s application challenging his placement on remand was thrown out yesterday after a Harare magistrate ruled that only President Robert Mugabe enjoyed immunity from arrest under the law.
Tomana, 48, is facing charges of criminal abuse of office and obstructing the course of justice after he allegedly withdrew charges against two men accused of plotting to bomb the First Family’s dairy in Mazowe.
According to the State, Tomana illegally ordered the release of Solomon Makumbe and Silas Pfupa — who are both facing treason charges — before police had finalised investigations into the matter.
Harare provincial magistrate Vakayi Chikwekwe said there was reasonable suspicion that Tomana’s actions constituted an offence.
“The law only provides for presidential immunity. I am convinced that police officers acted within their constitutional mandate by arresting the accused person.
“The police were simply alleging that he did not properly exercise his functions, resulting in the abuse of office. He caused the release of two accused persons arbitrarily, without a docket and information from the investigating officer,” Chikwekwe said.
Although Tomana had also questioned the authority of regional prosecutors Gwinyai Shumba and Timothy Makoni, Chikwekwe ruled that they had a constitutional right to audience by the court.
“When authority to prosecute is granted, it becomes a blanket authority. It is, therefore, not tenable and sound for the accused person to stand in the dock and question the prosecutors. Nothing stands in the way of the judicial process.
“I am strongly convinced that there is a clear nexus between the accused person and the alleged illegal conduct. He must be tried,” Chikwekwe said, before postponing the matter to March 7.
Tomana initially argued that the attempt to prosecute him was ultra vires the provisions of the country’s new Constitution which give 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. That function lies at the core of my constitutional mandate.
“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,” Tomana had argued.
Makumbe, a member of the Zimbabwe National Army and Pfupa, a former soldier, are jointly charged with Owen Kuchata — leader of a little-known political party going by the name Zimbabwe People’s Front — and Borman Ngwenya, who is also employed as a soldier.
Kuchata is already serving nine years in jail after he voluntarily pleaded guilty to the terrorism charges.
Prosecutors allege that sometime in August last year, the accused persons held several meetings at Queens Hotel in Harare and then plotted to subvert the country’s constitutionally-elected government.
They add that police received warning of the planned attack on Mugabe’s dairy, before intercepting the suspects as they headed to the property.
The prosecutor-general was subsequently arrested and charged with “obstructing the course of justice” after dropping charges against two of the four men — who have since been re-arrested.