Tomana sticks to his guns on private prosecutions

THE Constitutional Court is set to sit and rule in a case in which the Prosecutor General (PG), Johannes Tomana, is accusing the courts of violating his constitutional rights by forcing him to allow private prosecution of cases his office would have refused to handle.

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By Cyril Zenda

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TomanaIn a 23-page declaration filed in the Constitutional Court on August 14, Tomana argues that by hectoring him to act in a certain manner, the courts are overstepping their jurisdiction and in the process violating the country’s supreme law.

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The State’s chief lawyer is basing his argument on Sections 260 and 261 of the Constitution which read: “Subject to this Constitution, the Prosecutor General is not subject to the direction or control of anyone; and must exercise his or her functions impartially and without fear, favour, prejudice or bias.”

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It is these sections of the Constitution that Tomana wants the Constitutional Court to interpret in the backdrop of recent court rulings ordering him to issue certificates allowing private prosecutions.

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“The applicant humbly perceives that his constitutional right of independence and protection from the direction and control of anyone in the exercise of his prosecutorial functions is under threat of infringement,” the PG said in his declaration.

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“He therefore approaches this honourable court for the correct interpretation of his constitutional mandate and seeks relief in the confirmation of the independence of his constitutional mandate from the direction and control of anyone.”

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He cited cases from many countries in which the courts were ruled to be offside when they tried to give orders to State prosecuting authorities.

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“Applicant’s contention is that an order forcing him to issue his fiat (official approval) indirectly controls the prosecutorial function to decide whether or not there must be a prosecution. That being the case, no court of law can issue such an order,” Tomana said.

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He also quoted a case from South Africa where the right to private prosecution had been restricted from members of the public

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“to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies”.

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“Suffice to reiterate that the inherent review powers of the High Court in terms of Sections 26 and 28 of the High Court Act and Sections 171 as read with 176 (of) the Constitution, are indisputable but should never be overstated to the point of allowing judges to stray into the province of the PG,” Tomana argued.

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In this case, because the Constitutional Court is an interested party having previously made an order that Tomana ignored, it invited the Zimbabwe Lawyers for Human Rights (ZLHR) to give its legal opinion as friends of the court.

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The lawyers’ body filed it own arguments in which it accuses Tomana of trying to place himself above the law and therefore is of the opinion that his applications should be thrown out.

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“The friend of the court, Zimbabwe Lawyers for Human Rights, submits that this honourable court must decline to answer the question and dismiss the application.

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“The application is frivolous and vexatious and constitutes an abuse of the court process. It is so lacking in merit that it is deserving of the most serious censure,” ZLHR said.

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The lawyers say Tomana is approaching the court with dirty hands, having not complied with court orders. They say all court orders must be complied by everyone. Tomana, the lawyers say should have complied with the court orders before taking his case to the Constitutional Court.

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Even after issuing the certificates allowing private prosecution to take place, the law allows the public prosecutor to take over the cases, even for the sole purpose of scuttling them.

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“This application has not been invoked for the vindication of the Constitution. It has been brought as an attempt to divert justice from its true course so as to achieve an improper end.

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“Notwithstanding final decisions of the courts, the PG has deliberately not complied with the court orders requiring him to issue the certificate of nolle prosequi (private prosecution) in two matters which we submit have motivated this strange application.

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“This is despite that Section 164 (3) of the Constitution states that an ‘order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them,” the lawyers pointed out.

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Tomana filed the application last month after the Supreme, Constitutional and High Courts had directed him to issue private prosecution certificates in cases where he would have declined public prosecution.

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Telecommunications firm, Telecel Zimbabwe, won the right to private prosecution at the Constitutional Court in a case in which its former chairperson, Jane Mutasa, is being accused of defrauding the mobile telcommunication service provider of thousands of dollars through an airtime scandal.

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Bikita West legislator, Munyaradzi Kereke — a former Reserve Bank of Zimbabwe (RBZ) employee — has taken a case in which he accuses former RBZ governor, Gideon Gono, of committing various crimes during his time at the apex bank, saying the refusal by the PG to prosecute Gono, and also the refusal to issue a certificate of nolle prosequi violates his rights as a law-abiding citizen of Zimbabwe.

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Ironically, the same Tomana has also refused to allow private prosecution in a case in which the same Kereke is being accused of raping a child relative.

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Tomana, who is adamant that private prosecution is a not an absolute right, dismissed the ZLHR arguments in this case as misplaced.

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“What is clear is that the intervener (ZLHR) does not seek to assist the court but to grandstand. It must deal with issues of law that have been raised. At any rate, the dirty hands doctrine that it hints at is of no application for obvious constitutional reasons. – FinGaz

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