Daniel Nemukuyu Senior Court Reporter
Prosecutor-General Mr Johannes Tomana, who is locked up in a legal battle with the Judicial Service Commission (JSC), has requested a judge from outside Zimbabwe or a retired one to preside over his urgent chamber application to stop proceedings leading to his possible removal from office.
Mr Tomana was recently served with letters from JSC seeking his views on his suitability to hold the office of the PG considering his defiance of two court orders.
Letters from JSC are steps towards instituting a disciplinary tribunal to determine Mr Tomana’s suitability to continue in the esteemed office.
Mr Tomana, through his lawyers Mambosasa Legal Practitioners, filed an urgent chamber application at the High Court last Thursday seeking to bar JSC from instituting any disciplinary proceedings against him.
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Before the hearing time of the urgent chamber application, Mr Tomana’s lawyers wrote to the High Court requesting the court to first consider the issue of bringing in a foreign based judge or any other local judge who is not currently in service.
Mr Tomana argues that since he was objecting to the letter written by Chief Justice Godfrey Chidyausiku, his subordinates at the High Court were not the best judges to deal with the urgent chamber application.
In the letter to High Court judge Justice Lavender Makoni, Mr Tomana’s lawyers said a judge who is not serving in Zimbabwe can best handle the matter.
“It has consequently become imperative that this matter be dealt with by a judge who is not presently sitting in the High Court of Zimbabwe.
“The Constitution of Zimbabwe allows for the appointment of an acting judge. Precedent also shows that in related matters, judges have been appointed from outside the jurisdiction,” the lawyers said.
The lawyers said Mr Tomana will not get any justice if a judge serving at the High Court of Zimbabwe hears the application.
“We take the very strong view that arguing before you in light of this background would be an abdication of our duty both to the court and to our client,” the letter read.
Justice Makoni postponed the hearing of the matter to next week.
Mr Tomana will depose an affidavit stating his basis for the request of an outside judge while Mr Addington Chinake, on behalf of the Judicial Service Commission, will file a response to that.
In the letter, Mr Tomana cited the decision by the Chief Justice to dismiss a constitutional application by a Harare man Mr Rooney Kanyama without hearing him in court.
According to the lawyers, the throwing away of Mr Kanyama’s challenge was deliberate way of weakening Mr Tomana’s pending urgent chamber application.
They 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.
The Judicial Service Commission bosses, who authored the contested letter to Mr 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.
“It has become clear that contrary to all acceptable standards, the application by Mr Kanyama was placed before a judge of the Constitutional Court when it was less than a day old.
“An ambiguous remark has been given without jurisdiction.
“You will notice that the actions of the very same officials involved in the generation of this objectionable letter are also at the core of this application before you.
“It does not help matters that for all intents and purposes the very same officials are the superiors of all judges of the High Court which regrettably Judge, also includes yourself.
“The developments put you on a direct collision course with your superiors. Alternatively, it ties your hands at the instance of your superiors who are party to the matter before you,” reads the letter.