Kereke fights in Tomana’s corner Dr Kereke
Dr Kereke

Dr Kereke

Fidelis Munyoro Chief Court Reporter
Bikita West legislator Dr Munyaradzi Kereke has launched a legal challenge to the validity of a statute compelling Prosecutor-General Mr Johannes Tomana to issue a certificate for private prosecution where he declines to sue.

Mr Tomana is facing contempt of court charges in the High Court for defying a court order compelling him to issue a certificate for the private prosecution of Dr Kereke on charges of rape.

Dr Kereke is accused of raping an 11-year-old girl at his Mt Pleasant home in 2010, but Mr Tomana has refused prosecution pleading lack of evidence.

In his application filed at the Constitutional Court last week, Dr Kereke cited Mr Tomana in his capacity as the PG, Attorney-General Advocate Prince Machaya, Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa and the guardian of the minor girl, Mr Francis Maramwidze.

He wants Section 16 of the Criminal Procedure and Evidence Act scrapped from the country’s statutes.

The legislator contends that the statute is a threat to his fundamental rights and equal protection of the law under Section 56 (1) of Constitution read together with Section 260 (1) (2) of the supreme law.

“I urge the court to issue a declarateur that the entire statutory regime under Section 16 of the CPE Act is unconstitutional,” stated Dr Kereke, who is being represented by Advocate Lewis Uriri instructed by Mr James Makiya of Makiya and Part- ners.

It is also Dr Kereke’s contention that the law interferes with the PG’s independence and discretion as accorded him under Section 260 (1) (2) of the Constitu- tion.

“The constitutional scheme of that independence and discretion is to ensure that the first respondent (PG) prosecutes me on the actuation of evidence that founds reasonable suspicion that I have committed a crime,” he argues.

“The said constitutional matrix does not canvass that the fourth respondent (Mr Maramwidze) can prosecute me. This is because that scheme is alive to the real risk that the fourth respondent may prosecute me on the actuation of malice.”

Dr Kereke further argues that the intention behind Section 260 (1) (2) of the Constitution is to protect him from malicious prosecution by Mr Mara- mwidze.

“And the corollary of Section 16 of the CPE Act’s interference with the first respondent’s independence and discretion offends against my right to the benefit and protection of that scheme.”

This much, he says, violates Section 56 of the Constitution and must be declared invalid.

Last week the High Court postponed Mr Tomana’s contempt charges until the determination of his constitutional application in which he argues that he is constitutionally empowered to give his discretion as to which matters may or may not be pro- secuted.

Mr Maramwidze approached the High Court recounting how despite a High Court order on May 14 last year, directing Tomana to issue a certificate of private prosecution against Dr Kereke, the PG has not complied with the order.

Mr Tomana’s constitutional challenge will be heard on October 28.

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