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Kereke saga: Tomana seeks postponement

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Prosecutor-General (PG) Johannes Tomana yesterday applied for postponement of his contempt of court charge hearing filed by a Harare man Francis Maramwidze

Prosecutor-General (PG) Johannes Tomana yesterday applied for postponement of his contempt of court charge hearing filed by a Harare man Francis Maramwidze, who is seeking the prosecution of Bikita West MP, Munyaradzi Kereke over rape charges.

BY CHARLES LAITON

Tomana said he wanted the Constitutional Court (ConCourt) to dispense with his appeal first and the matter was postponed sine die by High Court judge Justice November Mtshiya.

Last year, Maramwidze won a Supreme Court order granting him authority to privately prosecute Kereke, but Tomana allegedly refused to grant him the necessary certificate, arguing he (Tomana) had the discretion to grant such certificate, him being the head of the prosecuting authority.

Kereke is accused of sexually abusing his then 11-year-old relative at gun point sometime in October 2010 and when the matter was reported to police the docket was referred to Tomana’s Office, where prosecution was declined.

After the Supreme Court’s judgment and through his lawyer advocate Sylvester Hashiti, Tomana, then filed a constitutional appeal, which is set to be heard on October 28. However, in his affidavit responding to Tomana’s ConCourt appeal, Maramwidze through his lawyer, Charles Warara argued the PG had no discretion in denying him the right to prosecute Kereke.

“Section 16(1) of the Criminal Procedure and Evidence Act does not give the PG discretion twice,” Warara said.

“Once he made a decision not to prosecute Kereke, he exercised his discretion and that was it. He cannot use yet another discretion to deny issuing of a private prosecution certificate, what it means is if he is allowed to do so then, he is above the law.”

Early this year Maramwidze filed a court application seeking Tomana’s indictment over contempt of court charges arguing he was refusing to comply with the Supreme Court order.

In his founding affidavit, Maramwidze said he was seeking an order for Tomana’s prosecution in his personal capacity.

“On March 3, 2014, this honourable court issued a judgment in my favour directing the respondent [Tomana] to issue a certificate to enable me to prosecute Munyaradzi Kereke privately,” Maramwidze said.

“In view of all this it is evident that the respondent does not want to comply with this court order. Respondent is fully wilfully refusing to oblige. Reasons advanced for non-compliance are not cogent and in the premises I seek an order for contempt of court charges to be made against the respondent in his personal capacity, since he has effectively refused to comply with a court order.”