Prosecutor-General Johannes Tomana was yesterday slapped with a 30-day imprisonment for defying court orders compelling him to issue certificates for private prosecution to complainants whose criminal cases would have been declined by the National Prosecuting Authority.
Chief Justice Godfrey Chidyausiku sentenced Tomana to the 30-days in jail wholly-suspended on condition that he complies with the court order within 10 days by issuing the requisite certificates for private prosecution.
The ruling has far-reaching consequences on Tomana, who might find himself ceasing to be the Prosecutor-General if he fails to abide by the order.
“In the event the applicant (Tomana) fails to comply with this order, he shall in his personal capacity be barred from approaching or appear as a legal practitioner in any court in Zimbabwe,” said Chief Justice Chidyausiku in the landmark ruling.
He said the full bench of the Constitutional Court unanimously agreed to stand firm and uphold the rule of law in the case after Tomana openly disobeyed lawful orders.
Chief Justice Chidyausiku said it was clear from the record of proceedings that orders were issued by the High Court in case HC1020/12 and by the Supreme Court in judgment No 1/2014 which was confirmed by the Constitutional Court in case No 8/2014.
He said it was also apparent that Tomana had disobeyed those orders in clear contravention of Section 164(3) of the Constitution of Zimbabwe.
“In terms of Section 165 (1) (c) of the Constitution, this court is obliged to uphold the rule of law and to make such orders as are necessary to achieve that purpose in accordance with its inherent jurisdiction,” said Chief Justice Chidyausiku.
Earlier on, the National Prosecution Authority sought a postponement, arguing that Parliament was seized with the case and that it was likely to resolve the contentious issues Tomana was raising in his application.
The National Assembly last week adopted a clause providing that the Prosecutor-General cannot be compelled to issue a certificate of private prosecution should he or she decline to charge an accused person, but still retains the power to issue one.
The National Assembly adopted the provisions contained in the Criminal Procedure and Evidence Amendment Bill.
The Bill awaits approval by Senate before it is forwarded to President Mugabe for his assent for it to become law.
Justice Chidyausiku threw out the application by the NPA to have the case stayed until the procedure in Parliament is completed and ordered the hearing to proceed.
Early this year, Tomana filed the constitutional application after the High Court, Supreme Court and the Constitutional Court had ordered him to issue out the certificates in various cases where public prosecution was declined.
Telecel Zimbabwe won its case for private prosecution at the Constitutional Court in a case in which former chairperson Dr Jane Mutasa is being accused of defrauding the mobile communication service provider of thousands of dollars in an airtime scandal.
The High Court also ordered Tomana to issue a certificate for private prosecution in a case in which Bikita West legislator Dr Munyaradzi Kereke is being accused of raping a minor.
Tomana was under pressure to comply with the orders and lawyers representing the complainants in the matters had written several letters seeking his compliance, without success.
In his constitutional application, Tomana sought the same court to declare that the issuance of certificates for private prosecution solely lies within the powers of the Prosecutor-General.
Directing the Prosecutor-General to issue out a certificate of private prosecution, he argued, was tantamount to a breach of his constitutional independence and protection control of anyone.
Tomana said the courts or any other arms could not, at law, compel him to issue the certificate.
He urged the courts to respect the doctrine of the separation of powers.
Mr Tomana further argued that his exercise of prosecutorial discretion was not susceptible to judicial review and that his decisions in that regard were beyond the province of the court’s review.
He submitted that the courts were in breach of the Constitution by compelling him to issue private prosecution certificates.
However, The Zimbabwe Lawyers for Human Rights, who were appointed as a friend of the court, argued through South African-based Advocate Tererai Mafukidze that Tomana’s application was an abuse of the court’s process.
Mr Tomana’s ex-parte application, according to ZLHR, was strange, frivolous and vexatious, warranting dismissal.
ZLHR said the PG has defied court orders despite the provisions of the Constitution compelling everyone to comply with court orders.
It was also argued that the courts have ruled on the matter and that the Constitutional Court cannot be asked to hear an appeal against its own decision.
Tomana, Adv Mafukidze argued, failed to fully disclose material facts of the matter, rendering the application defective at law.