Legal experts and opposition parties have criticised the arrest of Prosecutor-General (PG) Johannes Tomana, saying it is a violation of the Constitution by the police and State.
BLESSED MHLANGA
Zimbabwe Lawyers for Human Rights (ZLHR) said they were disturbed by the arrest and detention of the PG, and his appearance in court on charges of criminal abuse of office or alternatively obstructing the course of justice.
ZLHR warned that the actions of the police threatened the independence of the prosecutorial authority, which is constitutionally protected.
“Further safeguards exist under regional and international law. These provisions empower prosecutors to exercise their functions impartially and without fear or favour. As the head of the National Prosecuting Authority (NPA), the PG is entitled to such protection,” the statement from ZLHR read.
The human rights lawyers said, if the PG exceeded his powers, he should be called to order by the courts through civil — and not criminal — litigation.
“Some examples include the misuse of Section 121 of the Criminal Procedure and Evidence Act and his (Tomana’s) refusal to issue certificates nolle prosecui (formal notice of abandonment by a prosecutor of all or part of a lawsuit) to allow private prosecutions. The important point to note is that, in those and other cases, Tomana’s powers were successfully challenged through competent courts of law.”
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ZLHR said the arrest struck fear in judicial officers and delivery of justice, saying arresting and detaining the head of an independent prosecutorial authority purportedly due to disagreements on how he has decided to prosecute a matter was not correct and neither was it acceptable.
Constitutional law expert, Lovemore Madhuku said it was “premature and, therefore, unconstitutional to arrest and charge a Prosecutor-General for alleged acts of misconduct arising from the performance of his duties before invoking the procedures in the Constitution that deal with acts of misconduct by a person occupying that office.”
Opposition People’s Democratic Party spokesperson, Jacob Mafume said while many quarters would celebrate the arrest of Tomana because he was now tasting his own medicine, the action remained unconstitutional.
“He was an enthusiastic abuser of those processes, but we, however, while holding no brief for Tomana, are of the view that the exercise of constitutional discretion is not a crime,” he said.
MDC-T secretary for justice, Jessie Majome said Tomana’s arrest could militate against the NPA’s capacity to prosecute impartially without fear or favour, prejudice or bias as stipulated in the Constitution.
