Tomana arrest undermines rule of law: Lawyers


Prosecutor General, Johannes Tomana

LAWYERS this week condemned the arrest of the country’s Prosecutor General, Johannes Tomana, on criminal abuse of office, saying the action undermines the constitutional independence of his office.
Tomana was arrested on Monday this week and appeared in court a day later where he was released on US$1 000 bail coupled with stringent conditions after he ordered the release of two men who were part of a quartet suspected of trying to petrol-bomb President Robert Mugabe’s Alpha and Omega Daily farm in Mazowe.
Zimbabwe Lawyers for Human Rights (ZLHR) said Tomana’s arrest was needlessly harsh and therefore uncalled for.
“Such behaviour is a direct assault on the office of the Prosecutor General and the independence of the National Prosecuting Authority (NPA) as an institution,” ZLHR pointed out.
“It is an attack on the justice delivery system and the Constitution. It has the additional chilling effect on members of the legal profession of forcing them to act arbitrarily out of fear of the consequences of their actions and decisions, rather than encouraging professionalism, respect for the law, and compliance with their mandate as officers of the court to all people, equally.”
The lawyers’ body pointed out that the independence of the prosecutorial authority in Zimbabwe is constitutionally protected and further safeguards exist under regional and international law.
“These provisions empower prosecutors to exercise their functions impartially and without fear or favour. As the head of the NPA, the Prosecutor General is entitled to such protection.
“Where such powers have been exceeded in the past, the Prosecutor General has been called to order by the courts through civil – and not criminal – litigation.”
During Tomana’s bail hearing this week, his lawyer, Advocate Thabani Mpofu, argued that there was nothing serious about the allegations he is facing as he had correctly used his discretion in coming up with the decision he made as per powers vested in his office.
Mpofu said Section 12 of the National Prosecuting Act gives the prosecutor general the powers to determine prosecution.
He also said that section 260 of the Constitution states that no one can direct the prosecutor general when he is exercising his prosecutorial functions.
Mpofu argued that if a Prosecutor General commits an offence, he must be removed from office in the same way a judge is removed from office in terms of section 178 of the Constitution.
He said it is only after being removed from office that Tomana can be tried. United Kingdom-based law expert, Alex Magaisa, pointed out that the case against Tomana was at best very weak and had been handled in a very shoddy way. This is not the first time this has happened in Zimbabwe.
Former Attorney General, Sobusa Gula-Ndebele, was arrested in 2007 on similar charges after he allegedly assisted a fugitive banker to safely return from abroad.
Gula Ndebele was later removed from office and Tomana was appointed to replace him, before the position got upgraded to Prosecutor General under the country’s new Constitution.
High Court judge, Justice Benjamin Paradza, was also treated alike after he faced similar charges.
Tomana’s arrest has set tongues wagging as speculation runs wild that the PG could have fallen out of favour with the powers that be.
For the second time in three months Tomana has been hauled before the courts over his decisions.
At the end of October last year the PG was slapped with a 30-day jail term for defying a number of court orders compelling him to grant live for prosecution of Bikita West Member of Parliament and former Reserve Bank of Zimbabwe advisor, Munyaradzi Kereke and former Telecel board chairperson, Jane Mutasa. Kereke is facing rape charges, while Mutasa is being prosecuted for theft.
The sentence was, however, wholly suspended on condition that he complied with the court orders. He eventually did.
Former Harare mayor, Muchadeyi Masunda, a businessman and lawyer by profession, said it is possible that Tomana could now be caught up in the country’s protracted succession wrangles raging in the ruling party.
“The problem in this country is that high profile public officers have departed from the old tradition of not aligning with political parties. It’s not necessary to align yourself when you hold a public position. We need to make sure that people holding public offices are not seen to be taking partisan positions on any matter. We need to go back to the basics. He (Tomana) is now highly compromised and he may end up thinking that he is being persecuted by some in his party. He may even end up linking his predicament to factionalism in ZANU-PF,” said Masunda.

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