Prosecutor-General Johannes Tomana wants the Constitutional Court to determine whether it is constitutional to have a serving High Court of Zimbabwe judge preside over the case in which the Chief Justice’s decision is being challenged.
He wants the highest court in the land to consider the options of bringing in a foreign-based judge or a retired High Court judge to hear his urgent chamber application to stop the Judicial Service Commission from instituting disciplinary proceedings leading to his possible removal from office.
Tomana, who is embroiled in a legal wrangle with JSC, argued that he would not have a fair hearing if Chief Justice Godfrey Chidyausiku’s subordinate at the High Court hears his challenge. Recently, Tomana was served with letters from JSC seeking his views on his suitability to hold the esteemed office of the PG considering his defiance of court orders.
The letters signed by the Chief Justice, according to Mr Tomana’s lawyers, are steps towards instituting a disciplinary tribunal to determine the PG’s suitability to continue holding office.
He filed an urgent chamber application at the High Court to stop the JSC from continuing with its moves to bring him before a tribunal.
While the urgent chamber application was pending, Mr Tomana yesterday filed an interlocutory chamber application before the same court for referral of his High Court case to the Constitutional Court.
In the chamber application prepared by his lawyers Mambosasa Legal Practitioners, Mr Tomana listed JSC and the Minister of Justice Legal and Parliamentary Affairs as respondents.
Mr Tomana crafted the constitutional question for determination by the Constitutional Court as follows:
“Whether applicant can, consistent with the standard set out under Section 69(1) of the Constitution of Zimbabwe, receive a fair hearing if the application filed under case number HC1913/16 is dealt with by a presently sitting judge of the High Court of Zimbabwe.”
Mr Tomana, in a founding affidavit forming the basis of the chamber application, emphasised that he had not lost confidence in the judges of the High Court, but the circumstances surrounding the case required constitutional scrutiny.
“I must also point out that this application has nothing to do with my lack of confidence in the judiciary in Zimbabwe
It is however, a recognition of the fact that it is a misnomer for a judge of the High Court to make findings criticising or upholding what has been done by the head of the judiciary.
“I trust to reiterate that judges as a matter of practice decline to sit when they are required to make findings in favour of or against their peers.
“It is unheard of that a judge could make findings in favour of or against their superior,” he said.
Mr Tomana cited the decision by the Chief Justice to refuse to hear a constitutional application by a Harare man Mr Rooney Kanyama, saying the dismissal of the challenge was a deliberate way of weakening Mr Tomana’s pending urgent chamber application.
He said the Chief Justice who turned down the application by Mr Kanyama was the judiciary boss and his juniors (High Court judges) were likely to be compromised in dealing with the urgent chamber application.
The JSC bosses, who authored the contested letter to Mr Tomana and are party to the proceedings in the High Court, and the High Court judge, would be put in a difficult position handling the urgent applicatio, he argued.
Mr Tomana, who is facing criminal charges at the Harare Magistrates’ Courts’ involving Gushungo Dairy bombing, was in October last year slapped with a 30-day term of imprisonment 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.
Kereke was 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. Tomana was fined by a nine-member judges’ panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.
The sentence was, however, wholly set-aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, within 10 days, failure which he would be barred from practising as a lawyer in Zimbabwe.
The following month, Tomana 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