By Professor Matodzi
Harare, January 28, 2016 – Prosecutor General Johannes Tomana’s integrity was Wednesday left in tatters after one of the country’s judges gave him a dress down over what is widely viewed as his malicious prosecution of top rights lawyer Beatrice Mtetwa.
Harare High Court’s Justice Garainesu Mawadze took time to reprimand the controversial National Prosecuting Authority head for relentlessly pursuing a malicious agenda in a bid to overturn Mtetwa’s 2013 acquittal.
Mtetwa, who heads the Zimbabwe Lawyers for Human Rights Board, was acquitted by Harare Provincial Magistrate Rumbidzai Mugwagwa in November 2013 for allegedly defeating or obstructing the course of justice in contravention of Section 184 (1) (g) of the Criminal Law (Codification and Reform) Act Chapter 9:23.
The allegations stemmed from an incident in which she was accused of blocking some police details from conducting a search at one of then Prime Minister Morgan Tsvangrai’s Harare offices.
But at the close of the State case following a lengthy trial, Mugwagwa ruled that the State failed to establish a prima facie case against the feisty lawyer.
Despite the not guilty verdict, Tomana in April 2014, filed an application in the High Court seeking leave to appeal against the acquittal of Mtetwa.
He argued that Mugwagwa erred and misdirected herself when she granted the application for discharge filed by the human rights lawyer at the close of the State case.
Tomana insisted the State had adduced enough evidence which established a prima facie case against the lawyer.
But in a 10 page judgment seen by Radio VOP on Wednesday, Mawadze railed against the Prosecutor General for abusing his prosecutorial powers to persecute Mtetwa, a partner at Mtetwa and Nyambirai Legal Practitioners.
Mawadze berated Tomana for failing to proffer substantive reasons in court over his delay to file an application for appeal against Mtetwa’s discharge on time and why it took him five months to consider appealing Magistrate Mugwagwa’s decision.
“There is no meaningful explanation by the applicant for the delay in making this application other than try and blame those responsible for the transcription of the record,” Mawadze wrote in his judgement.
“This is difficult to appreciate in view of the fact that the reasons for the discharge of the first respondent at the close of the state case were availed immediately to the two trial prosecutors.
“I have no doubt in my mind that the time taken to approach this court is inordinate and that there was great need for the applicant to fully explain this delay of 5 months in view of the facts of this case.”
He added: “While I appreciate that there is not time frame in the relevant provision to bring this application it should be noted that this is not a blank cheque availed to the Prosecutor General to bring such an application at any time.
“I wish to clearly point out that such a delay should always be juxtaposed with the rights of an accused person who would have been acquitted by a competent court. Such an accused person would have gone home to celebrate with family and friends only to be told and advised some odd five months later that the celebration is premature and that the battle has just began. The inference one can therefore draw is that such conduct ceases to be prosecution but persecution.”
The High Court Judge also hit out at Tomana for abusing the appeals process by treating himself as “high priest” in cases which he should be conversant with the law. He said Tomana’s conduct left a lot to be desired considering that he is the head of the NPA.
“I have no doubt in my mind that after considering the facts of this case that it should be made abundantly clear to the Prosecutor General that the Prosecutor General is not at liberty to come to this court anytime the Prosecutor General so wishes and seek leave to appeal.
“Such conduct should be frowned upon by this court and ought to be admonished without any hesitation by dismissing such an application for leave to appeal. It is therefore my finding that there has been an inordinate and unexplained delay in bringing this application,” Mawadze said.
The Judge said Mtetwa’s right to a fair trial within a reasonable time as guaranteed under Section 69 of the Constitution should be protected.
“There is no meaningful explanation by the applicant (Tomana) for the delay in making this application other than to try and blame those responsible for the transcription of the record. This is difficult to appreciate in view of the fact that the reasons for the discharge of the first respondent (Mtetwa) at the close of the state case were availed immediately to the two trial prosecutors.
“I have no doubt in my mind that the taken to approach this court is inordinate and that there was great need for the applicant to fully explain this delay of five months in view of the facts of this issue. While I appreciate that there is no timeframe in the relevant provision to bring this application it should be noted that this is not a blank cheque availed to the Prosecutor General to bring such an application at any time,” Mawadze said.
Mawadze went on to rebuke Tomana for citing the wrong legal provision in bringing up an appeal for leave to appeal after he cited Section 61 of the Magistrates Court Act (Chapter 7:10) instead of Section 198 (4) of the Criminal Procedure and Evidence Act (Chapter 9:07).
The reprimand by Mawadze comes at a time when Tomana has in recent months been a subject of rebuke by the country’s apex court, the Constitutional Court whose judges in October last year slapped him with a one month imprisonment sentence for defying court orders compelling him to issue private prosecution certificates to complainants, who would have found no joy from the NPA.
In September last year, Tomana also lost a key case in which rights lawyers from ZLHR successfully obtained an order from the Constitutional Court annulling Section 121 (3) of the Criminal Procedure and Evidence Act (CPEA) (Chapter 9:07), which himself and his team of prosecutors had routinely abused for several years to veto bail orders granted by judicial officers.
During his tenure in office as Prime Minister, MDC-T leader Morgan Tsvangirai opposed Tomana’s appointment as the chief government lawyer and prosecutor and cited his partisan conduct in the prosecution of several human rights and opposition party supporters whom he pursued and lost against including former MDC-T Treasurer-General Roy Bennett.
On several occasions, Tomana, who has publicly admitted that he supports President Mugabe’s Zanu PF party, denies allegations that he biased and claims that he executes his mandate impartially.