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Permanent Secretary in the Ministry of Information, Media and Broadcasting Services, Mr George Charamba.

Farirai Machivenyika Senior Reporter—
Government is studying the Constitutional Court judgment compelling Prosecutor-General Johannes Tomana to issue certificates of private prosecution with a view to addressing contradictions in the Constitution over the power and the rights it gives to individuals and State institutions. Permanent Secretary in the Ministry of Information, Media and Broadcasting Services Mr George Charamba said yesterday that the matter was beyond Mr Tomana and his office and the Constitutional Court.

“The matter before us is much more complicated than has been framed in the media,” he said. “It goes beyond parameters of institutions in question and it certainly goes beyond behaviours of persons involved. “There are fundamental principles that are at stake and the remedies may go beyond actions by the conflicting institutions. Government is studying the matter very carefully. The legislature is exercised by the same matter and a solution might emerge from multiple perspectives not any one actor.

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“The conflict between the bench and the Prosecutor-General might imply bigger problems which go back to the Constitution and powers it arrogates to the institutions of the State and individual rights and institutional rights.”

The Constitution provides for the independence of both the judiciary and the National Prosecuting Authority, while at the same time giving individuals the right to access justice, areas observers said had resulted in the dispute between the Prosecutor-General and the Constitutional Court.

“Section 69 (3) of the Constitution says every person has the right to access to the courts, or to some tribunal or forum established by law for the resolution of any dispute, while Section 164 (1) says the courts are independent subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice and Section 164 2 (a) says neither the State nor any institution or agency or the Government at any level and no other person, may interfere with the functioning of the courts,” said a lawyer who declined to be named.

“The questions that arise then is what is the limit to the enjoyments of these rights? Can they be enjoyed without infringing on other institution or individual rights? These are the questions that should be addressed.” The National Assembly passed the Criminal Procedure and Evidence Amendment Bill last week that includes a clause that prevents the Prosecutor-General from being directed to issue a certificate of private prosecution by anyone.

The Bill, which is now before Senate, also prohibits individuals and corporates from applying for certificates for private prosecution. Prominent Harare lawyer Mr Terrence Hussein said: “What the law says at the moment is that prosecutions are carried out at the instance of the Prosecutor-General and his office is independent. However, if he does not want to prosecute he must issue a certificate to say that he does not wish to prosecute.

“Once he does that the matter comes out of his hands and interested individuals would be free to pursue the matter privately. The issue here was that he did not want to issue that certificate and the court overruled that.

“One has to understand that in terms of the Constitution, every institution is a subject to the Constitution and the law. Whenever there is a dispute over the Constitution interpretation the last port of call is the Constitutional Court that is where the disputes are resolved. If there are parties not happy with its judgments the only other way would be the legislative process to amend the Constitution.”

But former Attorney-General Sobusa Gula-Ndebele said if the Prosecutor-General declines to prosecute it did not mean private individuals could not prosecute if they so wish. Section 258 of the Constitution states that: “There is a National Prosecuting Authority, which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.”

“This means the independence that he (Tomana) enjoys relates to prosecutions he does on behalf of the State. It is in such cases that he cannot be under the direction of anyone,” said Mr Gula-Ndebele. “So, in this instance he declined to prosecute and the courts only directed him to issue that certificate so that the individuals could pursue private prosecution.

“When they say the Prosecutor-General is independent and is not subject to anyone’s direction it doesn’t mean he is above the courts, that is why even in his appointment the Judicial Service Commission makes recommendations to the President.” University of Zimbabwe law lecturer Professor Lovemore Madhuku said the Prosecutor- General’s independence was not absolute.

“If he refuses to issue the certificate, aggrieved individuals may take the matter to the courts to determine whether his reasons for refusal are reasonable or unreasonable,” he said. “It is a review and the courts have jurisdiction to determine whether the Prosecutor-General was reasonable or not.

“So, there is no interference with his independence because the Constitution does not give him the right to act in an unreasonable way. What that judgment says in essence is that the independence of the Prosecutor-General does not mean independence from the courts.

“In any case, no official is independent from the courts because if we wanted it that way it should have been expressly mentioned in the Constitution like is the case with the Presidential immunity. The Constitution should also have mentioned that the Prosecutor-General prosecutes “at his pleasure” if we wanted his decisions not to be questioned.”

Early this year, Tomana filed the constitutional application after the High Court, the Supreme Court and the Constitutional Court ordered him to issue out the certificates in various cases where public prosecution was declined. Telecel Zimbabwe won its case for private prosecution at the Constitutional Court in a case in which former chairperson Dr Jane Mutasa is being accused of defrauding the mobile communication service provider of thousands of dollars in an airtime scandal.

The company has, however, indicated that it was no longer pursuing the matter after reaching an out of court settlement. The High Court also ordered Tomana to issue a certificate for private prosecution in a case in which Bikita West legislator Dr Munyaradzi Kereke is being accused of raping a minor. Tomana was under pressure to comply with the orders and lawyers representing the complainants in the matters had written several letters seeking his compliance, without success.

In his constitutional application, Tomana sought the same court to declare that the issuance of certificates for private prosecution solely lies within the powers of the Prosecutor-General.

Directing the Prosecutor-General to issue a certificate of private prosecution, he argued, was tantamount to a breach of his constitutional independence as provided in Section 260 1(a) which states that the Prosecutor-General “is independent and is not subject to the direction or control of anyone”.