VICE-PRESIDENT Emmerson Mnangagwa is on a slippery slope after his close ally, Prosecutor-General Johannes Tomana, was this week slapped with a 30-day imprisonment for defying court orders compelling him to issue private prosecution certificates to complainants rebuffed by the National Prosecuting Authority.
by Owen Gagare
In a unanimous ruling — which could have far-reaching consequences for Tomana and serious political collateral damage for Mnangagwa — Chief Justice Godfrey Chidyausiku, with eight other Constitutional Court judges, jailed Tomana to a wholly-suspended 30-day sentence on condition that he complies with their order in 10 days or face a ban from legal practice.
Under Mnangagwa’s tutelage, the National Assembly had 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 Act Amendment Bill on Thursday last week despite determined resistance by opposition MPs.
A senior Zanu PF official with a legal background yesterday warned Chidyausiku’s ruling could have serious consequences for Tomana and Mnangagwa, as well as the Vice-President’s political allies, including Bikita West MP Munyaradzi Kereke accused of raping an 11-year-old minor in 2009.
“The ruling will have far-reaching consequences and implications for Tomana and Mnangagwa, as well as his allies like Kereke. It will have serious and widely-felt repercussions on the legal and political landscapes,” the official said.
“First, it is a major setback for Tomana who has gone to extraordinary lengths to resist co-operating with the courts even to the extent of defying court orders on the Kereke and Jane Mutasa cases. It carries a lot of risk for him and it might well sound the death knell for his career. On Mnangagwa, it will have serious political collateral damage. As Vice-President and someone in charge of the Ministry of Justice, and besides as a lawyer, Mnangagwa ought to have been assisting the courts to ensure due process, not helping those defying them and obstructing the course of justice.”
Tomana, with Mnangagwa’s steadfast backing, refused to prosecute alleged offenders in the Kereke and Mutasa cases. Zimbabwean criminal law allows aggrieved parties in such circumstances to conduct private prosecutions, but they must get a certificate to that effect — nolle prosecui — under the Criminal Procedure and Evidence Act. The law requires Tomana to issue this certificate to enable private parties to prosecute privately.
The High Court had ordered Tomana to issue the certificates in terms of the law. These orders were subsequently confirmed by the Supreme Court and the Constitutional Court in 2014. However, Tomana did not comply with these orders. Instead, he launched a constitutional application in the Constitutional Court, challenging the validity of the law which allows private prosecutions.
The matter was argued before the Constitutional Court on Wednesday and Tomana’s constitutional application was dismissed with costs on a higher scale, a punitive measure representing the court’s disapproval and annoyance.
Mnangagwa, who was steering the Bill in parliament to rescue Tomana, had claimed the objections by the MDC-T lacked merit.
“This clause will remove any suggestion that the Prosecutor-General is compelled to issue such a certificate,” Mnangagwa said. “It also prohibits any corporate body, registered or unregistered association, from applying for or receiving such a certificate.”
There was a heated debate during the committee stage of the Bill as MDC-T legislators objected to the provision which they said set a bad precedent. Harare West MP Jessie Majome, Mutare Central legislator Innocent Gonese and MDC proportional representative MP Priscilla Misihairabwi-Mushonga objected to the provision.
“We are moving away from the law that compels the PG to issue a private prosecution,” Mnangagwa insisted.
Gonese said it was wrong to give absolute discretion to the Prosecutor-General to take legal action, adding that there was no prejudice suffered by the state if the certificate was issued as the court still had the ultimate say.
Mnangagwa argued private prosecution was a mere privilege and not a right.
“We cannot constrain the Prosecutor-General to say he must do this or that,” he said.
Although Mnangagwa, who has a long history in the liberation struggle and has worked closely with President Robert Mugabe for about five decades, is still considered a favourite to succeed the incumbent such cases continue to erode his credibility and viability as a potential successor.
Mnangagwa is battling with a faction which has crystalised around First Lady Grace Mugabe and Vice-President Phelekezela Mphoko for ascendancy. The group includes Zanu PF senior officials such as Jonathan Moyo, Saviour Kasukuwere and Patrick Zhuwao. It also has many other officials lurking in the background waiting to join the fray as the succession battle intensifies.
Information gathered this week shows Grace and her team will seek to capitalise on all Mnangagwa setbacks, including this week’s fiasco, to continue pushing him backwards and rolling back the political ground he currently occupies.
“The plan is to push Mnangagwa onto political quicksand so that he remains unstable and does not consolidate,” another senior Zanu PF official. “The strategy is that he must be fought, weakened and eventually defeated.”
However, Mnangagwa’s allies insist that they have enough lasting power and ammunition to ward off Grace’s marauding allies and their campaign of attrition.
Mnangagwa in July publicly backed Tomana when he was under fire from Grace as well as women and children’s rights activists who wanted him relieved of his duties after being quoted in the state media suggesting that girls under the age of 12 could consent to sex.
The Vice-President however defended Tomana saying he cannot be fired over utterances wrongly attributed to him.
“Even if Mnangagwa is politically strong and experienced, and has leverage on state security structures, his rivals will not stop exploiting his weaknesses, which include his lack of a social base, his regional politics and accusations on explosive issues like the Gukurahundi massacres,” one official said. “The G40 camp says Mnangagwa has suffered several setbacks since being appointed vice-president, including shooting himself in the foot by describing the late pioneering nationalist and vice-president Joshua Nkomo as a sellout in an interview with New African magazine. Mnangagwa also described current military commanders as too junior, implying they can’t stop him from taking over from Mugabe.”
Grace’s camp is also reportedly happy that Mphoko’s influence in government is growing. After his appointment, Mphoko, initially new in government, was seen as the second vice-president and did not have much influence, but his responsibilities have been increasing with time. He now oversees implementation of government programmes meaning all ministers report to him, while Mnangagwa is in charge of resource mobilisation and is the leader of government business in parliament.
Mphoko is currently Acting President while Mugabe is away in India.
Grace’s allies are having a field day running rings around Mnangagwa. “Is this a real crocodile or an ambitious lizard?” tweeted Moyo on October 16, in a remark widely interpreted to mean Mnangagwa is not as shrewd or smart as often claimed as the succession battle escalates.