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Johannes Tomana

Tendai Rupapa Senior Court Reporter 
Harare regional magistrate Mr Noel Mupeiwa is on Friday expected to make a determination on who is supposed to pay the legal costs incurred in the private prosecution of former Bikita West legislator Munyaradzi Kereke.

The magistrate will decide who among the three — National Prosecuting Authority, suspended Prosecutor-General Johannes Tomana in his personal capacity or Kereke — will pay the legal costs.

Private prosecutor Mr Charles Warara made the application for legal costs last month in terms of Section 22 (3) of the Criminal Procedure and Evidence Act which states that, “Where a person prosecuted at the instance of a private party is convicted, the court may order the convicted person to pay the costs and expenses of the private prosecution.”

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The section further provides that, “If the private prosecution was instituted after a certificate by the Prosecutor-General that he declined to prosecute the court may order costs to be paid by the State.”

Last week, Acting Prosecutor-General Advocate Ray Goba said Tomana, whose decision not to publicly prosecute Kereke is in question, should be given an opportunity to explain himself in court.

In a letter to Mr Warara following Adv Goba’s response, Mr Mupeiwa said: “As we agreed, the matter is set down for August 15. If honourable Johannes Tomana manages to avail himself on that day, then we will hear his submissions, but if he fails to avail himself, be prepared to answer to these submissions and the ruling will then follow.”

However, Tomana did not attend court yesterday to respond to the application despite being expected to give his side of the story.

In his submissions yesterday, Mr Warara said: “Tomana failed to show up knowing that the way the matter was conducted was unprocedural. He did not come because he has nothing to say,” he said.

“What the PG’s office did during that time was corruption which is so glaring because they favoured an accused person. If it was just an old man from Chiundura, would Tomana have intervened? The court must look into all these issues to come up with a determination.”

He added that Kereke was also to blame for trying to evade justice saying he made attempts to frustrate justice.

Mr Warara said: “I do not know how Tomana came up with his decisions. Therefore, I do not want to make submissions attacking him personally. It would have been fair if he was here together with a representative from the PG’s office so that they could explain themselves.”

Mr Warara questioned why the PG’s office got involved in the vetting of Kereke’s docket.

“This was an ordinary rape case which did not require Mr Dube the deponent of the set down office, to attend to the docket. From the police station, the docket should have been vetted by the senior public prosecutor at the Rotten Row court before referring the matter to a remand court for initial remand.

“The question is why was the set down office, which deals with High Court matters, involved with a matter which falls within the jurisdiction of the senior public prosecutor? This is where the alleged corruption arose from,” he said.

Through his lawyers, Kereke is refusing to pay legal costs saying he was neither the one who barred his prosecution nor the one who runs the PG’s office.

His lawyer Mr Marshal Hondo Chitsanga said there was no reason why the NPA should not be ordered to meet the costs.

“If the private prosecution is looking for someone to burden with the costs, then the NPA should be blamed for not prosecuting him. There is no basis why the accused should be burdened with the costs,” he said.

Mr Chitsanga added that there was no evidence to show that Kereke influenced Tomana’s decision not to prosecute him.

The defence also argued that Mr Warara’s application was misplaced adding that the court became functus-officio when it jailed Kereke.

However, Mr Warara in response, said the issue of costs could not have risen before conviction therefore his application was properly before the court.