The Judicial Service Commission yesterday resolved to make a recommendation to President Mugabe to set up a tribunal to investigate and assess whether Johannes Tomana was still fit to hold his office.
JSC’s resolution is likely to render Tomana’s efforts to block disciplinary proceedings only an academic exercise.
Tomana, who is facing criminal charges at the Harare Magistrates’ Court involving an alleged “foiled bomb attack” on Gushungo Holdings Alpha & Omega dairy plant, was in October last year slapped with a 30-day jail term 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.
The sentence was, however, wholly set aside on condition that he complied with the court orders and issued private prosecution certificates to Mr Francis Maramwidze and Telecel within 10 days, failing which he would be barred from practising as a lawyer in Zimbabwe.
Kereke is 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.
The resolution to refer the case to President Mugabe was made at a meeting convened by the JSC commissioners yesterday.
In terms of the Section 187 (3) of the Constitution of Zimbabwe if JSC makes a recommendation to the President, the President must set up the tribunal.
Section 187 (10) states that the suspension of the PG or judge becomes automatic the moment a recommendation is made to the President.
Sources who attended the meeting yesterday confirmed the development saying only one commissioner out of nine who sat yesterday had a different view.
At the end of the day, the majority decision prevailed.
The resolutions came at a time Tomana was still fighting to block the disciplinary proceedings through the courts of law.
Tomana’s lawyers yesterday filed an application at the Constitutional Court contesting the dismissal of his application for referral of his matter to that court by the High Court.
Last week High Court judge Justice Lavender Makoni threw out the referral application by Tomana saying it was frivolous.
In the dismissed application, Tomana was seeking to bar all serving High Court judges from hearing his urgent interdict stopping the disciplinary action that had been initiated by JSC.
Instead, Tomana preferred a retired judge or a foreign-based one.
Yesterday’s application was a challenge against refusal by Justice Makoni to refer his request for a retired judge to the Constitutional Court.
Tomana last year was again at the centre of another storm for allegedly abusing the court process to rubber-stamp the acquittal of former Zupco board chairman, Professor Charles Nherera, who was charged with corruption.
The abuse reportedly occurred at the time when Tomana was the Attorney- General. Prof Nherera was acquitted by the High Court in November 2009 barely a year after Tomana was appointed to the post of then AG.
In his court papers filed at the High Court Tomana argued that the process seeking to remove him from office was unlawful and was activated by the JSC.
Tomana argued that the Constitutional Court judgment, which committed him to jail unless he issued certificates for private prosecution was issued from a court of no jurisdiction.
He also contends that the order was also invalid in that the Constitutional Court dealt with a matter which was not before it. The Constitutional Court, he added, cannot at law deal with a contempt of court matter.