HARARE - Controversial First Lady Grace Mugabe faces legal hurdles in her mission to have error-prone prosecutor general (PG) Johannes Tomana expelled for his age of consent statements with legal analysts saying the Constitution virtually protects him.
According to the Constitution, the PG is appointed in accordance with Section 259 to be head of the National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.
Section 187 states that Tomana can only be removed from office for inability to perform duties owing to mental or physical incapability, gross incompetence or gross misconduct.
But to do so, the Judiciary Services Commission (JSC) should first of all advise the president that his removal needs to be investigated.
Once this is done, the president will then appoint a tribunal to inquire into the matter.
Lovemore Madhuku, a University of Zimbabwe (UZ) law professor said the statements made by Grace in Kadoma recently where she called for Tomana’s removal from office were made by someone who did not understand the law.
“The statements emanated from an ignorant person. She demystifies the country because she shares the bedroom with the person who leads the country,” Madhuku said.
He dispelled fears that the remarks made by Grace who has become very influential in the following her “bedroom coup” which resulted in the purging of ex-vice president Joice Mujuru and her allies.
“The president can only act if there is something from the judiciary. If it is the Chief Justice then the president can consider but any other judge must come from the Judiciary Services Commission.
“In Tomana’s case, he is alleged to have made statements which he denies and that is not sufficient to have a person removed from office,” he said.
“It is not enough to make a case but the only problem is that he made his views public but it is the same position that many public officials share only that they do not make their views public,” he added.
The UZ lecturer also warned that public utterances criticising the office of the PG must be circumspect.
Jacob Mafume, a lawyer who is also spokesperson for MDC Renewal team said Grace could still influence the PG’s ouster politically.
“This is probably the reason why Mnangagwa(Emmerson) went on to announce an NPA board soon after the Kadoma meeting.
“This board may actually come in with a hostile attitude and recommend his ouster but then again Tomana chairs that board.
“Another scenario could be that he might also use the law to hold onto his post but he might end up being a lame-duck prosecutor who may not be able to prosecute party heavy weights.
“However, Tomana may be in a catch 22 situation as Zimbabwe is not a mature democracy where due processes are followed, otherwise his ouster will be a long winding process.
Obert Gutu spokesperson of the mainstream MDC said it was not legally possible for the First Lady to stand up at a political rally to announce that Tomana would be fired.
‘’The PG ranks pari pasu, ie at the same level, with a Supreme Court judge and therefore, there are certain constitutional provisions that have to be followed before Tomana can be fired.
“Cabinet ministers can be fired at any time by the President and the President is not even obliged to give any reason for dismissing a Cabinet minister.
“However, the PG cannot, just like a judge, be dismissed from office without invoking the provisions of Section 187 of the Constitution,’’ Gutu said.
Women and child rights activists welcomed the call by the Zanu PF Women’s League boss to have Tomana fired.
Nyaradzo Mashayamombe, director of Tag a Life, a child rights organisation welcomed the Grace’s views saying that Tomana’s views were a flagrant violation of the Constitution.
“I’m happy that a public figure is looking into it.
“He was out of line and we hope those he reports to take action.
“What he was recommending is against the Constitution,” Mashayamombe said.