By Sij Ncube
HARARE, October 30,2015– Zimbabwe Prosecutor General (PG) Johannes
Tomana’s position is untenable after being slapped with a 30-day
imprisonment for defying court orders, analysts say, but there are
doubts President Robert Mugabe will fire him as choruses grow for the
former attorney general to go.
Critics are adamant Tomana must fall, citing various incidents in
which they claim has reportedly shammed his office, developments the
analysts are agreed confirm his is not fit for the office of PG.
Tomana was found guilty of refusing to adhere to court orders
compelling him to issue certificates for private prosecution to
complainants whose criminal cases would have been declined by the
National Prosecuting Authority.
Chief Justice Godfrey Chidyausiku sentenced Tomana to 30-days in jail
wholly-suspended on condition that he complies with the court order
within 10 days by issuing the requisite certificates for private
Tomana is reportedly overseas on government business but analysts and
opposition officials say he should resign despite being given 10 days
to compile with the order.
Some critics attribute his present dilemma to factionalism in Zanu PF
as camp jostle to position themselves to succeed Mugabe when he
eventually decided to retire.
Chief Justice Chidyausiku said it was clear from the record of
proceedings that orders were issued by the High Court in case
HC1020/12 and by the Supreme Court in judgment No 1/2014 which was
confirmed by the Constitutional Court in case No 8/2014.
He said it was also apparent that Tomana had disobeyed those orders in
clear contravention of Section 164(3) of the Constitution of Zimbabwe.
Jessie Majome, the MDC-T secretary for Legal and Parliamentary
Affairs, says his party has been vindicated as it has long declared
the Prosecutor General unfit for office for his openly declared
political partisanship to Zanu(PF)
“Now he continues to work his hardest to demonstrate that he is
utterly unfit for the crucial post. First it was the abomination of
supporting child marriage when he should be prosecuting offenders in
terms of Section 3 of The Domestic Violence Act (Chapter 5:16) that he
is evidently ignorant of. Next was his warped view of his powers and
independence as Prosecutor General, of believing that he is higher
than the law and the courts and is the last word in prosecution, and
even throwing his weight like a bull in a china shop to intimidate his
justified critics for the delusional ‘offence’ of undermining the
authority his office,” said Majome, the legislator for Harare West.
She added that the MDC T is appalled by the collusion between the
Executive and the “hapless and dangerous” Prosecutor General in
subverting the legislative process to amend the Criminal Procedure and
Evidence Act so that “it sanitizes and forestalls his defiance of and
hence contempt of the High Court. The MDC T’s efforts to resist that
nefarious anti-people amendment were thwarted by that unholy
Majome however, said the MDC T is encouraged that the Constitutional
Court ruling has given a new lease of life to access to criminal
justice for ordinary people who the Prosecutor General is not
“The recent amendment to bar private prosecutions by individuals and
companies now needs to be knocked down by the courts as
unconstitutional as soon as it is assented to. The Prosecutor
General’s persistently corrupt behavior is not only an insult to the
national interest, but puts the office of the Prosecutor General into
gross disrepute, and is an utter a disgrace to the legal profession.
He is wholly unfit for purpose; in fact he does not know the purpose
of his office i.e. to protect the public from criminals.
The MDC T therefore calls upon the Prosecutor General to resign before
he does any more harm. If he does not do so the MDC T demands, as the
only way of saving the tax paying public from his pedophilic and
cleptocratphilliac prosecuting policy, that the President now appoints
a tribunal to investigate the question of his necessary removal from
office in terms of section 187(2) as read with section 258(7) of the
Constitution. To save the public, Tomana must go,” she said.
Jacob Mafume, the spokesperson for the Tendai Biti led party, says it
is a disgrace that an attorney general is refusing to comply with the
rule of law.
“The law requires that where someone gets a court order it must be
complied with without exceptions. Even where one disagrees with the
order,” said Mafume.
“The matter has been in the courts for so long instead of complying
Tomana is finding ways not to follow the court order. He must resign
if he cannot simply issue a certificate in line with a competent court
order. This is a disgrace to his office and a gross violation of his
The party said the breach of a court order is a serious constitutional
violation and Tomana’s transgression warrants his contract of
employment as the PG has compromised the NPA.
“Therefore, his conditions of service as the PG are no longer tenable.
We appeal to the PG to do the honourable thing and resign;
otherwise the President should dismiss him in terms of the
Constitutional lawyer, Alex Magaisa, chipped saying machinations to
gauge Tomana’s suitability to remain in the PG’s office should be
“The Constitution of Zimbabwe requires that for one to hold the office
of Prosecutor-General (PG), the country’s chief prosecutor, he or she
“must be a fit and proper person”. It’s a high standard, equivalent to
that required of a judge of the Supreme Court. The most pressing
question of the day, in the aftermath of an unprecedented order of the
Constitutional Court, is whether the current PG, Mr Johannes Tomana,
is still a fit and proper person to continue in that office,” said
“Nevertheless, even if he does comply, would he still be fit and
proper to carry on in his role? One option, which is highly unlikely,
is to resign under the weight of violation of the Constitution and the
law. There is hardly any culture of resignation among public officers
in Zimbabwe, even for misconduct as gross and glaring as this. I would
be surprised if he does throw in the towel willingly. The last time
Tomana’s conduct drew outrage, over his comments regarding the age of
consent, he claimed political victimisation and that he had been
misquoted. These defences would not make sense in this case, but he
might still hang on banking on political protection. Public officers
in Zimbabwe rarely resign, even for the worst excesses, and I don’t
expect Tomana to break the trend.”
By Sij Ncube