President Mugabe has given the disciplinary tribunal established to determine suspended Prosecutor-General Mr Johannes Tomana’s suitability to continue holding the position, three months to conclude the matter starting on July 25.
This comes as lawyers representing Mr Tomana yesterday queried why Harare provincial magistrate Mr Vakayi Chikwekwe, who dealt with Mr Tomana’s several initial applications, was now the trial magistrate.
President Mugabe appointed Advocate Ray Goba acting PG during the three months of the disciplinary proceedings.
The President yesterday swore-in the tribunal, comprising chairperson retired High Court Judge Justice Moses Chinhengo, University of Zimbabwe Dean of Law Mr Emmanuel Magade and Harare lawyer, Ms Melina Matshiya at State House in Harare.
Speaking to the media after his swearing in, Justice Chinhengo said the tribunal’s terms of reference entailed that disciplinary proceedings start on July 25 and finish within three months.
“Our mandate as we understand it, is that the Prosecutor-General has been suspended and there has got to be an investigation into his suspension. We will read all the matters that are supposed to be read and we will look into them,” said Justice Chinhengo.
Adv Goba said he was ready to take up the challenge, although he sympathised with Mr Tomana on the situation he found himself in.
“I have been happy in private practice as an advocate, but when I was called upon to take up the challenge because of the circumstances, I accepted it,” he said.
“I have been in the position before. I have held a similar position in Namibia where, I was Deputy Prosecutor-General, and then I was the Deputy Government Attorney, I became Government Attorney and then I was also the director of Legal Services and International Co-operation before I came back.
“From an experience perspective, it is a manageable situation, but then you know in such a job you will be dealing with people. One of the most difficulties is to manage people in such a way that you work as a team. That you don’t have people doing their own things in the office when the office is supposed to be moving in a specific direction.
“My duty for the time I will be holding (the) fort, because it’s not a permanent appointment, is to ensure that the office continues to run, to build up on what the Prosecutor-General has been doing, which I will have to find out in light of the amendments to our Constitution.
“There are certain requirements in the Constitution regarding what needs to be done, polices that need to be implemented with regard to prosecution decisions, why you prosecute and why you don’t prosecute? All those things have to be in place. I do think I have the requisite experience to manage the situation for the time being.”
President Mugabe, in terms of Section 187(3) of the supreme law of the country, must establish a tribunal upon receiving recommendations from the Judicial Service Commission.
In terms of Section 187(4), the tribunal must consist of at least three members.The chairperson of the tribunal, according to the same section, must be someone who once served as a judge of the Supreme or High Court.
Justice Chinhengo, an accomplished lawyer, served as a judge of the High Court in Harare for eight years, before serving another eight years as a judge of the Botswana High Court.
He was a part-time lecturer at the University of Zimbabwe and is currently doing arbitration work.
Justice Chinhengo also serves on the Appeal Court of Lesotho as a visiting judge.
In May this year, the Judicial Service Commission made recommendations to the President for the establishment of a tribunal to investigate and assess whether Mr Tomana was still fit to hold his office.
Mr Tomana, 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 Dr Munyaradzi Kereke, and Telecel shareholder Dr Jane Mutasa.
The sentence was 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 resolutions came at a time Mr Tomana was still fighting to block the disciplinary proceedings through the courts of law.
Meanwhile, Advocates Thabani Mpofu and Sylvester Hashiti instructed by Mr Tazorora Musarurwa and Mr Alex Mambosasa argued that a remand magistrate could not be the trial magistrate since he would have heard and assessed evidence during bail application and several interlocutory applications.
The move did not go down well with the defence team which felt it was not acceptable.
Advocate Mpofu told the court that he would be joined by three more advocates to defend Tomana.
Tomana, who was yesterday suspended to pave way for disciplinary hearing on various charges of improper conduct, is facing charges of criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice after he allegedly ordered the release of two men — Solomon Makumbe and Silas Pfupa — suspected of trying to petrol-bomb the First Family’s Alpha Omega Dairy Farm in Mazowe.
“Your Worship, I want to make it clear that I am raising the issue not as an application but for you to consider the position that you are in. It is completely unacceptable for the judicial system to put a judicial officer in a position that he hears evidence twice. A remand magistrate cannot be the trial magistrate,” he said.
“Having heard evidence relating to the issues which would be raised during trial, got into the core of the evidence and assessed it, surely with much respect, the position you have been put in by the judicial system is totally unacceptable.”
Mr Mpofu further argued that the public would lose interest in the judicial system.
“If the remand magistrate proceeds to trial, people will ask questions. They will ask why another magistrate was not appointed to deal with the trial. The public will doubt the legitimacy of this process and when that happens, justice is seen not to be done,” he said.
He said that for the interest of justice, if a magistrate was put in that position, the best way was for him/her to recuse himself/herself.
“When all this happens, the officer recuses himself in the interest of justice as a result of realisation that justice should be done. When the officer does not recuse himself, then the proceedings must be a nullity. I do not suggest that you are biased but what I suggest is that there is judicial bias,” Advocate Mpofu said.
He, however left the gallery in stitches when he jokingly said, “Your worship, I want you to decide whether it is proper for you to sit in judgment over the matter. Those would be my submissions and I want those submissions to torment your conscience.”
The prosecutor, Mr Timothy Makoni with the assistance of Mr Gwinyai Shumba, said he was not going to respond to Advocate Mpofu’s submissions since it was not an application.
Mr Chikwekwe will pass his determination today.
It is the State’s case that Makumbe, Pfupa, Owen Kuchata and Borman Ngwenya were arrested for possession of weaponry for sabotage and money laundering for terrorism purposes.
Their request for remand placement forms were taken to the National Prosecuting Authority which gave the greenlight for the four to be placed on remand.
The quartet was taken to court for initial remand and was remanded in custody.
On January 29, the State alleged Tomana, knowing that police investigations were still in their infancy and without having sight of a complete docket, directed the withdrawal of charges before plea against two of the accused Makumbe and Pfupa.
He unilaterally suggested that the two be treated as witnesses.