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Prosecutor-General Johannes Tomana is escorted by detectives into the Harare Magistrates’ Courts yesterday under heavy police guard. —(Picture by Innocent Makawa)

Tendai Rupapa Senior Court Reporter—
Prosecutor-General Johannes Tomana yesterday appeared in court charged with criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice after he allegedly ordered the release of two men suspected of trying to petrol-bomb the First Family’s Alpha Omega Dairy farm in Mazowe. The pair — Solomon Makumbe and Silas Pfupa and their alleged accomplices Owen Kuchata and Borman Ngwenya — recently appeared in court charged with possession of weaponry for sabotage and money laundering for terrorism purposes. The two were, however, back in court yesterday facing a more serious charge of treason.

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Tomana reportedly directed the withdrawal of charges before plea against Makumbe and Pfupa and unilaterally suggested that they be treated as witnesses. The prosecutor-general appeared before Harare provincial magistrate Mr Vakayi Chikwekwe under heavy police guard and was released on $1 000 bail coupled with stringent conditions after Mr Chikwekwe ruled that he was not a flight risk. Mr Chikwekwe said the State’s fears could be allayed by the stringent bail conditions.

“I am not convinced that he is a flight risk. An accused person is presumed innocent until proven guilty hence the right to liberty should not be interfered with. The State laboured to prove its assertions therefore bold assertions do not suffice in the circumstances.

“There is no single proof that he tried to abscond or interfere with investigations. What I can say is that the accused person can be ordered by the court not to interfere with witnesses and investigations,” he said.

Mr Chikwekwe said the seriousness of an offence on its own was not sufficient to deny an accused person bail, adding that even in murder cases, suspects are granted bail. As part of the bail conditions, Tomana was ordered to surrender his passport and to report thrice a week to CID Law and Order section.

He was also ordered to reside at his given address and not to interfere with witnesses among them the national director of public prosecution Mrs Florence Ziyambi and her deputy Mr Nelson Mutsonziwa until the matter is finalised. He was remanded to February 16.

He is being represented by Advocate Thabani Mpofu instructed by Mr Alex Mambosasa and Mr Tazorora Musarurwa of Mambosasa legal practitioners. Advocate Mpofu notified the court of his intentions to challenge various issues on the next hearing. Appearing for the State Mr Timothy Makoni and Mr Gwinyai Shumba opposed bail.

They called the investigating officer Assistant Commissioner Thulani Ncube who gave evidence in support of refusal of bail by the State. Asst Comm Ncube said Tomana was facing a serious offence which called for imprisonment if convicted hence was likely to abscond if granted bail. He added that the police needed more time to conduct further investigations saying there might be other people who aided him in committing the offence.

“Your Worship, the offence before this court is a serious one in the sense that the accused committed this offence during his pursuance of duty as the prosecutor general. The crime calls for incarceration if found guilty hence for that reason he is likely to abscond,” he said. Asst Comm Ncube added that witnesses in this case were his subordinates hence he was likely to interfere.

“He is running a powerful office which determines the direction in which prosecution should be directed. He is likely to cause trouble to these witnesses and influence them,” he said.

He also said that the prosecutor general was likely to interfere with investigations since police are yet to record statements from some of the witnesses adding that they had only managed to record statement from chief law officer Michael Mugabe who had been initially arrested and later released.

Tomana, through his lawyers argued that there was nothing serious about the allegations he is facing. He said what he did was above board as he used his discretion. Advocate Mpofu said section 12 of the National Prosecuting Act gives the prosecutor general the powers to determine prosecution.

He also said that section 260 of the Constitution states that no one can direct the prosecutor general when he is exercising his prosecutorial functions. Advocate Mpofu argued that if a prosecutor general commits an offence, he must be removed from office in the same way a judge is removed from office in terms of section 178 of the Constitution.

After removal, he can then be tried, said Adv Mpofu. He said that police were overstepping for they could not tell the prosecutor general what to do. “The evidence produced in this court is hopeless and an insult to the intelligence of the court. This is a clear fact of interference by the police. The police take orders from the PG and the same police is now reviewing the prosecutorial functions. The police should not arrest to investigate,” he said.

It is the State’s case that Makumbe, Pfupa, Kuchata and Borman Ngwenya were arrested for possession of weaponry for sabotage and money laundering for terrorism purposes. On January 25, their request for remand placement forms were taken to the national prosecuting authority where Mrs Ziyambi, Mr Mutsonziwa, chief law officers Michael Mugabe and Chris Mutangadura went through the documents and gave the greenlight for the four to be placed on remand.

The quartet was taken to court for initial remand and was remanded in custody. On January 29, the ,State alleged Tomana, well knowing that police investigations were still in their infancy and without having sight of a complete docket, directed the withdrawal of charges before plea against two of the accused Makumbe and Pfupa.

The two were released from remand. He unilaterally suggested that the two be treated as witnesses which was contrary to the evidence at hand which is linking them to the offence, the court heard.