Prosecutor-General Mr Johannes Tomana is pushing for the scrapping of contempt charges raised against him in the High Court for refusing to issue a certificate for private prosecution of Bikita West legislator Dr Munyaradzi Kereke. Mr Tomana defied an order issued by the High Court last year for the private prosecution of Dr Kereke for allegedly raping a minor.
Justice November Mtshiya yesterday deferred the hearing to October 6. Advocate Sylvester Hashiti appearing for Mr Tomana, requested the postponement to allow an application filed by his client at the Constitutional Court to be determined. The matter will be heard next week. Dr Kereke allegedly raped an 11-year-old girl at gunpoint at his Vainona home in Harare.
Since the court ruling on May 14 last year, Mr Tomana has been approached to comply with the court order, but has repeatedly refused to bring Dr Kereke to trial claiming there was no evidence. The girl’s guardian, Mr Francis Maramwidze, is asking the High Court to find Mr Tomana in contempt of court and jail him for six months or fine him $1 000 for the offence.
It has, however, emerged that the application filed by Mr Maramwidze’s lawyer Mr Charles Warara, is defective. In a bid to remedy the defect, Mr Warara is expected to make an application to amend the pleadings in terms of Rule 132 of the High Court Rules, when the court sits to hear the matter next month.
In the main application submitted in the High Court, Mr Warara had cited the office of the PG as respondent. He will beseech the court to allow an amendment of all the pleadings in the main application to reflect the respondent as “The Prosecutor-General of Zimbabwe Johannes Tomana”.
“This amendment has been necessitated by the apparent lack of enforcement mechanisms to compel the prosecutor-general of Zimbabwe, in his official capacity to abide to court orders,” read the applicant’s affidavit filed in the High Court on Wednesday. “It is noteworthy that it is not the Office of Prosecutor-General of Zimbabwe which has mounted all forms of passive defiance of legitimate order of the court, but rather the man who holds the office.”
But Mr Tomana in his papers insists that his exercise of prosecutorial discretion was not susceptible to judicial review. He argues that in terms of Section 260 of the Constitution he was absolutely autonomous and not subject to the control of anyone be it Cabinet, police, victims of offences and the courts.
He wants Constitutional Court to interpret the provisions of Section 260 in the wake of the court rulings ordering him to issue certificates allowing private prosecutions. “My decisions in this regard are, therefore, beyond the province of the court’s review powers,” argues Mr Tomana. He further contends that courts should not interfere with prosecutorial discretion to issue a certificate of nolle prosequi.
“If the courts are allowed to meddle with my decisions, the integrity of my office will be eroded,” he argues. Mr Tomana also argues that the application of contempt of court against him was made in error and should fail. He was not cited and was never served with the court order issued against him last year.
In May last year, Justice Happias Zhou ordered Tomana to issue a certificate allowing the girl’s family to prosecute Dr Kereke privately, but Mr Tomana defied the order.