Zim Judges Shame Tomana In Landmark Ruling

By Professor Matodzi


HARARE, October 29, 2015 – Zimbabwe’s apex court on Wednesday left the
country’s Prosecutor General Johannes Tomana disgraced after
imprisoning him for one month and threatened to deregister him from
practising as a lawyer.
In March, Tomana filed an ex-parte application before the
Constitutional Court in which he sought an order from the
Constitutional Court empowering him to autonomous discretion in terms
of deciding on whom to provide or not provide with a certificate to
privately prosecute an individual or legal persona.
Tomana also sought to bar the courts from interfering with his powers
to decline prosecution.
The Prosecutor-General appealed to the Constitutional Court after he
had defied orders by the Supreme Court which had ordered him to issue
certificates of private prosecution allowing Telecel Zimbabwe, one of
the country’s mobile phone operators, to institute a private
prosecution against its ex-chairperson Jane Mutasa who was implicated
in the alleged misappropriation of $750 000 arising from airtime
Tomana had also defied a High Court order compelling him to issue a
certificate of private prosecution allowing a Harare man Francis
Maramwidze to institute a private prosecution against Zanu(PF)
legislator Munyaradzi Kereke, who was accused of raping a minor.
But Tomana’s reign in defying court orders came to a costly halt on
Wednesday after the Constitutional Court convicted him for defying
lawful court orders and imprisoned him to serve 30 days in jail.
In a unanimous decision delivered by Chief Justice Godfrey
Chidyausiku, the Constitutional Court ruled that it was apparent that
Tomana had disobeyed court orders in clear contravention of section
164 (3) of the Constitution.
Tomana’s actions in defying court orders and seeking to have
unfettered powers in  making prosecutorial decisions incensed Zimbabwe
Lawyers for Human Rights and Maramwidze’s lawyer Charles Warara to
file an application to intervene in the proceedings as friends of the
court on the basis that the application brought by the
Prosecutor-General had a major impact on the protection of human
rights and freedoms guaranteed in the Constitution, the administration
of justice and the observance of the rule of law.
In its application which was granted by the Constitutional Court, ZLHR
also argued that the application by the Prosecutor-General had
implications on several fundamental constitutional issues, including
the exercise and limits of judicial authority, the right of
individuals to access courts, the duty of the Prosecutor-General to
account for his decisions and actions as required by law, the duty of
the Prosecutor-General not to violate the fundamental rights or
freedoms of any person and his duty to exercise his powers in line
with the legal requirements of the Constitution.
The human rights organisation, which has represented and secured
acquittals for several human and political rights activists who would
have been persecuted and prosecuted by Tomana charged that the order
that the Prosecutor-General sought placed his decisions above the
scrutiny of the courts.
Tuesday’s landmark ruling leaves a huge dent on the integrity of
Tomana whom former Prime Minister Morgan Tsvangirai’s MDC-T party has
for years accused of being partisan to President Robert Mugabe’s Zanu
(PF) party.
Tomana has in recent years openly confessed that he sympathised with
Zanu(PF) and defended himself insisting that his allegiance to the
ruling party does not compromise his professionalism.