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Prosecutor General Mr Johannes Tomana

Chief Court Reporter—
Prosecutor-GENERAL Mr Johannes Tomana says compelling his office to issue a certificate for private prosecution in cases where thorough investigations show no crime was committed is tantamount to abuse of the law. He said the National Prosecuting Authority is constitutionally mandated not only to institute and undertake criminal prosecutions on behalf of the State but also to discharge any functions that are necessary.

“Such other functions include generally upholding the interests of justice and in particular ensuring that constitutional rights of citizens to protection of the law are upheld,” he said.

Mr Tomana said this in his heads of argument in the case in which he is seeking to nullify the Supreme Court decision compelling him to issue a certificate for the private prosecution of Telecel (Private) Limited shareholder Ms Jane Mutasa accused of fraud involving more than US$1,7 million in airtime recharge vouchers.

On March 11, Mr Tomana filed a Constitutional Court application against the Supreme Court decision saying it sought to interfere with powers constitutionally vested in his office.

“Compelling applicant (Mr Tomana) to facilitate a private prosecution under circumstances where a full investigation of allegations against an accused person clearly exonerate that accused person from any wrong-doing would lead to absurdities and a mockery of the criminal justice system,” he said.

“More so, given the fact that the prosecutor can still take over a private prosecution and discontinue proceedings. Surely, the legislature could not have intended a situation where applicant initially has unfettered discretion in prosecutorial decisions loses it midway then regains it again.”

Mr Tomana filed his heads of argument last week after Telecel had written to the Constitutional Court requesting for the abandonment of Mr Tomana’s application challenging the Supeme Court order.

According to Telecel lawyer Advocate Isaiah Mureriwa, Mr Tomana was expected to file his heads of argument within 15 days of bringing the application but the period lapsed on April 1.

He wrote to the Constitutional Court requesting the matter to be abandoned for non-compliance with court rules.
Mr Tomana wants to quash Justice Bharat Patel’s ruling that a private entity could institute private prosecution and that Mr Tomana failed to exercise his statutory powers on proper legal footing.

In February, the mobile phone company obtained an order that Mr Tomana issue a certificate for prosecution of Ms Mutasa.
Mambosasa Legal Practitioners are acting for Mr Tomana in the matter.