Suspended Prosecutor-General Johannes Tomana feels hard done by after a magistrate refused to hear his submissions before granting him bail on Tuesday, and is taking the matter up with the High Court.
Tomana, who is facing five counts of criminal abuse of office, was released on $2 000 bail plus $250 000 surety as his lawyers exchanged barbs with presiding magistrate Mr Tendayi Mahwe.
Tomana’s lawyer Mr Tazorora Musarurwa fired a salvo at Mr Mahwe accusing him of failing to follow elementary rules in bail proceedings.
The exchange of harsh words came after the prosecution and the defence team agreed that Tomana would not pay bail in accordance with Section 117 of the Criminal Procedure and Evidence Act.
But Mr Mahwe had a different view and placed Tomana on bail coupled with stringent conditions despite the fact that he was on bail on similar charges of criminal abuse of office.
The defence felt it should have been given an opportunity to make submissions explaining the law on bail proceedings.
In an interview yesterday, Mr Musarurwa said his client had paid bail and surrendered surety in terms of the court order, which he described as harsh and unreasonable.
He said they would approach the High Court for a review of the magistrate’s decision.
“We are now ready to file an application for review following yesterday’s decision, with a view to set it aside,” said Mr Musarurwa. “The magistrate rushed to make a decision without hearing submissions from both the defence and the prosecution counsel on the matter.”
Mr Musarurwa exchanged harsh words with Mr Mahwe over the bail quantum and surety.
Prosecuting, Messrs Gwinyai Shumba and Timothy Makoni had agreed with the defence that Tomana should not pay bail in terms of Section 117 of the Act.
But Mr Mahwe disagreed saying there was no law saying bail was no issue when a suspect was coming from home.
Mr Musarurwa told the magistrate that he had already made a ruling without hearing the accused’s side.
This is a violation of the basic principles of our system,” said Mr Musarurwa.
“May the court allow us to make submissions?”
Mr Mahwe shot back saying the defence had already addressed the court.
“If the ruling of the court is wrong then remedy lies with the High Court. If this court reverses its own judgment it becomes functus officio,” said Mr Mahwe.
Allegations against Tomana are that in 2004 Bright Matonga, the former chief executive of Zimbabwe United Passengers Company (Zupco), was charged with culpable homicide. The charge arose from a traffic accident that claimed the life of Chipo Chikowore.
When Tomana became Attorney General he allegedly called for Matonga’s docket and instructed that the charges to be dropped.
In 2006 Matonga was charged with contravening sections of the Prevention of Corruption Act. In December 2008, it is alleged Tomana instructed a law officer in his offcie, Morgan Dube to drop charges after plea against Matonga. The court heard that in 2006, Zupco board chairman Charles Nherera was charged with corruption.
Tomana testified as a defence witness and Nherera was sentenced to three years in prison. After sentence, Nherera unsuccessfully applied for bail pending appeal and his appeal was dismissed at the High Court. Nherera served his sentence and was released from prison in December 2008.
After the release, Tomana declared that Nherera was innocent and had been wrongfully convicted.
In the fourth count, the court heard that former Bindura Hospital acting medical superintendent Beauty Basile was charged with criminal abuse of duty.
She appeared at the Harare Magistrates Court and Tomana instructed the withdrawal of charges after plea on November 24, 2009.
The court also heard that in October 2009, Patrick Mavros, a gold dealer, was charged with possession of gold without a licence.
Mavros admitted to the charges but Tomana directed that prosecution be declined.