Tomana ordered back to court

HARARE - Suspended Prosecutor-General Johannes Tomana has been asked to pay for costs and expenses incurred when private prosecutors were bringing jailed Zanu PF legislator Munyaradzi Kereke to justice after he had allegedly protected him for long.

This was said by private prosecutor Charles Warara during an application for compensation.

Harare regional magistrate Noel Mupeiwa subsequently made an order for Tomana to appear in court on July 25 to respond to the submissions before the court.

Kereke was last week sentenced to an effective 10 years in jail for raping his 11-year-old niece.

“The accused person should be ordered to pay the expenses on a higher scale. The conduct of the accused person and that of the (then) prosecutor-general in itself left a lot to be desired. It took a very long time for the accused person to be brought to justice ...

“…Even in this court it was consistent with designing an elaborate scheme to deceive and lie by deliberately coaching witnesses and fabricating documents.

“The (then) prosecutor-general was defiant and left a lot to be desired leaving the accused person to benefit from his (Tomana) misconduct in defying the law. Were it not for the Constitutional Court the accused person would have been scot-free up to this hour.”

Warara said according to section 22 (3) of the Criminal Law, the magistrate had the discretion to either order the accused person or (then) prosecutor-general to meet the costs.

“The court must, nonetheless order the costs to be paid by the (then) prosecutor-general. For the sake of justice, private party ought to be compensated on a fully recovery basis.”

However, in Kereke’s absentia his lawyer Erum Mutandiro argued that Warara’s application was wrongly placed as it sought to make the court review its own judgment.

His contention was that since the magistrate had not considered the issue of costs during sentencing it had to fall away.

“The court did not make an award as to costs because prosecution did not pray so…it (court) therefore cannot be faulted in any way because it is trite that courts do not grant what has not been prayed for.

“The prosecution has remedy in the superior courts. It is not in dispute that these very proceedings were initiated by the (then) prosecutor-general, the decision to decline prosecution was made by him and there was no way the accused person would have forced himself to trial.

“The court ought to show a good reason why the (then) prosecutor-general should not be burdened by such costs. In fact, ordering costs on a punitive scale would be tantamount to punishing the accused person twice.”

Mutandiro urged the court to also order Warara to foot costs that were incurred by Kereke when he was eventually acquitted on indecent assault.

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