PROSECUTOR-General (PG) Johannes Tomana’s application seeking removal from remand on charges of criminal abuse of public office was yesterday dismissed by a Harare magistrate, who said the PG “is not immune to prosecution”.
Charges against Tomana emanate from his withdrawal of criminal charges against two military intelligence personnel, Solomon Makumbe and Silas Pfupa, who are facing possession of weapons for banditry, insurgency or terrorism charges.
Makumbe and Pfupa were arrested in an alleged foiled attempt to bomb President Robert Mugabe’s Gushungo Dairy in Mazowe last month.
In his ruling, provincial magistrate Vakai Chikwekwe said Tomana was lawfully arrested and the prosecutors had authority to prosecute him.
“I am of the opinion and strong conviction that he (Tomana) should remain on remand. Application to remove accused from remand is hereby, dismissed,” he said.
Chikwekwe said that while he was cognisant of the fact that the Office of the PG enjoyed constitutional independence, it remained a fact that it was not immune from prosecution.
“Section 260 of the Constitution should not be read in isolation and if read with section 261 it shows that they do not enjoy the right to violate the law. The said section does not provide immunity from prosecution and if it did the legislature would have expressly said so,” he said.
The magistrate said it was only the Office of the President that enjoyed immunity from prosecution.
The court further noted that “police acted within the confines of their mandate when they made the arrest” and that prosecutors Timothy Makoni and Gwinyai Shumba had blanket authority to prosecute cases in the country, since their licences had not been revoked or withdrawn.
“The arrest was valid and the accused had acted arbitrarily by withdrawing the charges against the two without seeing the docket or consulting with the investigating officer,” Chikwekwe said.
Tomana’s defence team said it was going to consult their client before deciding on the next step. The matter was remanded to March 7, and the defence requested for the State to provide them with a trial date on that day.