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Johannes Tomana

Daniel Nemukuyu Senior Court Reporter
SUSPENDED Prosecutor-General Johannes Tomana, who is facing six counts of criminal abuse of office, is now challenging the constitutional validity of his prosecution at the High Court. Tomana’s trial had been set for yesterday, but Advocate Thabani Mpofu instructed by Mambosasa Legal Practice, filed an application for stay of prosecution. The lawyers are arguing that the prosecution was invalid and that it must be stayed.

Alternatively, the lawyers are seeking an order stopping the trial pending finalisation of the Disciplinary Tribunal to determine Tomana’s suitability to continue holding the esteemed office.

The lawyers will today make oral submissions in court. Tomana, in his affidavit, is challenging the constitutional validity of the prosecution. “I submit that it is in breach of the protection of the law guarantee as set out under Section 56(1) of the Constitution of Zimbabwe and is accordingly and on account of Section 2(1) of the same Constitution void,” reads the affidavit.

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He argues that the trial has not been brought within a reasonable period of time.

“The charges raised against me date back to the year 2009. The Nherera matter concerns what is alleged to have occurred on or around the 19th of November 2009. The Basile matter is also a 2009 matter and so is the Mavros matter. That is also true for the Matonga matters.

“There has been no change in the Government of Zimbabwe. There has been no change in her constitutional framework and statutory laws. The forces that are behind the activation of this process, whatever/whoever they are, have been in existence as at the respective dates of the conduct now impugned.

“Nothing stopped those forces from activating this process earlier and indeed, before I made the transition from Attorney-General to Prosecutor-General,” Tomana argues.

He contends that his right to a fair hearing within a reasonable time as enshrined under Section 69 of the Constitution will be violated if the trial starts. Tomana argues that the delay in bringing the criminal proceedings was inordinate and no tangible reasons exist to substantiate it.

Memory, according to Tomana, had been affected by the passage of time. Tomana argues that the decision by the Acting PG to charge him amounted to breach of the Constitution.

“Both in terms of the former and the current Constitution, I have a constitutional discretion to decide what matters to prosecute and what matters not to prosecute. “The exercise of such discretion cannot be reviewed particularly under these circumstances where it is not alleged neither is it intended to be proved that I corrupted myself,” he said.

Tomana argued that the criminal trial and the tribunal cannot run concurrently, hence the court must wait until finalisation of the disciplinary proceedings.

“To the extent that the tribunal processes are constitutionally mandated to place recommendations before the President of the Republic, it is by law that tribunal must inquire into these issues. If the tribunal takes the view that I conducted myself criminally, it is for that tribunal to recommend a prosecution.

“In the meantime and for those reasons, the prosecution should be stayed. These processes cannot run concurrently,” he said. Tomana is facing trial for criminal abuse of office after he allegedly dropped charges against suspects accused of attempting to bomb Gushungo Dairy.

Allegations in the other cases are that in 2004, Bright Matonga, then chief executive of Zimbabwe United Passenger Company (Zupco), was charged with culpable homicide. It is alleged that the charge arose from a road traffic accident that claimed the life of magistrate Ms Chipo Chikowore.

Tomana allegedly called for the docket and instructed that the charges be dropped. In 2006, Matonga was charged with contravening sections of the Prevention of Corruption Act. In December 2008, Tomana allegedly instructed Morgan Dube to drop charges after plea against Matonga.

The court heard that in 2006, Zupco board chairman Charles Nherera was charged with corruption. Tomana testified as a defence witness and Nherera was sentenced to three years in prison.

After sentence, Nherera unsuccessfully applied for bail, pending appeal at the High Court. Nherera served his sentence and was released from prison in December 2008. When Tomana was appointed AG, he declared that Nherera was innocent and wrongfully convicted.

The court heard that former Bindura Hospital acting medical superintendent Beauty Basile was charged with criminal abuse of duty. She appeared before the Harare Regional Magistrates Court.

Tomana allegedly ordered the withdrawal of charges after plea on November 24, 2009. The court heard that in October 2009, Patrick Mavros, a gold dealer, was charged with possession of gold without a licence. Mavros admitted to the charges but Tomana directed that prosecution be declined, it is alleged.