Daniel Nemukuyu Senior Court Reporter
Prosecutor-General Johannes Tomana’s application for referral of his request for a foreign-based judge to the Constitutional Court was yesterday postponed to April 5 this year.
High Court judge Justice Lavender Makoni deferred the case after Judicial Service Commission lawyer Mr Addington Chinake asked for 10 days within which to file supplementary heads of argument addressing the court on the commission’s attitude to the request.
Tomana wants the Constitutional Court to determine whether it is constitutional to have a serving High Court judge presiding over the case in which the Chief Justice’s decision is being challenged.
In the chamber referral application filed on Monday at the High Court, the prosecution boss wants the highest court in the land to consider the options of bringing in a foreign based judge or a retired High Court judge to hear his urgent chamber application to stop JSC from instituting disciplinary proceedings leading his possible removal from office.
Tomana, who is embroiled in a legal wrangle with JSC, argued that he will not have a fair hearing if Chief Justice Godfrey Chidyausiku’s subordinate at the High Court hears his challenge.
Recently, Tomana was served with letters from JSC seeking his views on his suitability to hold the esteemed office of the PG, considering his defiance of court orders. The letters signed by the Chief Justice, according to Tomana’s lawyers, are steps towards instituting a disciplinary tribunal to determine the PG’s suitability to continue holding office.
He filed an urgent chamber application at the High Court to stop JSC from continuing with its moves to bring him before a tribunal. While the urgent chamber application was pending, Tomana on Monday filed an interlocutory chamber application before the same court for referral of his High Court case to the Constitutional Court.
Tomana in the founding affidavit forming the basis of the chamber application, emphasised that he had not lost confidence in the judges of the High Court, but the circumstances surrounding the case required constitutional scrutiny.
He cited the decision by the Chief Justice to refuse to hear a constitutional application by a Harare man, Mr Rooney Kanyama, saying the dismissal of the challenge was a deliberate way of weakening Tomana’s pending urgent chamber application. He said the Chief Justice who turned down the application by Mr Kanyama was the judiciary boss and his juniors (High Court judges) were likely to be compromised in dealing with the urgent chamber application.
JSC bosses, who authored the contested letter to Tomana and are party to the proceedings in the High Court, and the High Court judge will be put in a difficult position handling the urgent application. Tomana, who is facing criminal charges at the Harare Magistrates’ Courts’ involving Gushungo Dairy bombing, was in October last year slapped with a 30-day term of imprisonment for contempt of court, after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Dr Munyaradzi Kereke and Telecel shareholder Dr Jane Mutasa.
Kereke was accused of raping an 11-year-old relative, while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars. Tomana was fined by a nine-member judges’ panel of the Constitutional Court led by Chief Justice Chidyausiku.
The sentence was, however, wholly set aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, within 10 days, failure which he would be barred from practising as a lawyer in Zimbabwe.
The following month, Tomana was again at the centre of another storm for allegedly abusing the court process to rubber-stamp the acquittal of former Zupco board chairman, Professor Charles Nherera, who was charged with corruption.
The abuse reportedly occurred at the time when Tomana was the Attorney-General.
Prof Nherera was acquitted by the High Court in November 2009, barely a year after Tomana was appointed to the post of then AG.