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Johannes Tomana

Daniel Nemukuyu Senior Court Reporter
The country’s Constitution does not provide for the appointment of ad-hoc judges to hear particular cases and that the request by Prosecutor General Johannes Tomana for a foreign-based or a retired judge to hear his single High Court interdict application must be dismissed, the Judicial Service Commission has said.

Tomana, who recently filed an urgent chamber application at the High Court to stop JSC from continuing with the process leading to his possible removal from office, wants that challenge to be heard by a retired High Court judge or a foreign-based judge.

He has filed another chamber application at the High Court to have the issue of a foreign or retired judge referred to the Constitutional Court for determination.

Responding to the chamber application for referral of the matter to the Constitutional Court, JSC’s lawyer Mr Addington Chinake argued that the law only provides for the appointment of judges for a period of up to 12 months in cases of shortage but does not provide for an ad-hoc appointment of judges to deal with a specific single case.

“In any event, there is no section of the Constitution, which provides for the ad-hoc judicial appointments, even where a person meets the qualifications of appointment as a judge, which is the relief ultimately sought by Mr Tomana in this instance,” argued Mr Chinake.

The JSC indicated that Tomana could have wrongly interpreted the law in arriving at a decision of requesting for a judge to deal with his single case only.

The commission said such a request was alien to the Constitution and that it had never happened in the history of this country’s judiciary. “There is no history of a non-sitting judge being appointed to the High Court for the specific reason of hearing only a single matter. The precedence which the applicant may be relying on, however, is the tribunal appointed by the President in February 2004, in terms of Section 87(3) of the old constitution, to determine the question of whether the former judge Benjamin Paradza ought to be removed from office.

“However, it should be emphasised, none of the foreign judges were ever appointed to hold judicial office in Zimbabwe,” JSC argued.

The commission urged the High Court to dismiss the chamber application with costs.

“Having started this matter on an urgent basis, the only logical outcome is the dismissal of the application with costs on a legal practitioner and client scale,” read the heads of argument.

The JSC said even the President, being an appointing authority for all judges, the same judges without fear or favour professionally handle many cases where the President sues or is sued.

“The President thus clearly plays a definitive role in the appointment of judges. Notwithstanding this role, cases are brought before the courts for and against the President in his official capacity.

“There is no indication that the central role of the President in the appointment of judges has led to any bias in favour of, or against, the President in matters brought before the courts. In the same vein, it is highly fanciful to aver that a judge of the High court will not be partial in a matter involving the JSC and indirectly the Chief Justice of the Republic,” argued the JSC.

The JSC argued that Tomana’s application lacks merit and that it was premised on baseless and unsubstantiated belief that the judges will not be impartial enough in dealing with his case.

“The application is without merit as it merely constitutes a back-door, wholesale application for the recusal of Honourable Justice Makoni, and, indeed all currently sitting judges of the High Court because of an unreasonable questioning of the impartiality of the judges of the High Court.

“No averments have been proffered by the applicant to show why no judge can be impartial in the circumstances, no benefit may be drawn by the honourable judge if she makes a decision in favour of JSC nor are there any possible repercussions to be suffered if a decision against the JSC is made,” the JSC argued.

Oral arguments will be placed before the judge on April 5 this year.

Tomana faces possible removal from office due to non-compliance with court orders.

Tomana, who is facing criminal charges at the Harare Magistrates’ Courts’ involving Gushungo Dairy bombing, was in October last year slapped with a 30-day term of imprisonment for contempt of court after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Munyaradzi Kereke and Telecel shareholder Jane Mutasa.

Kereke was accused of raping an 11-year-old relative, while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars.

Tomana was fined by a nine-member judges’ panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.

The sentence was, however, wholly set-aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, failure of which he would be barred from practising as a lawyer in Zimbabwe.