Police had no right at law to arrest, detain and prosecute Prosecutor-General (PG) Johannes Tomana as he is the one with the exclusive public prosecution powers in the country, a magistrate has heard.
Advocate Thabani Mpofu, who is representing Tomana, yesterday made the submissions before magistrate Vakai Chikwekwe where he is seeking the removal of the PG from remand on charges of criminal abuse of office as a public officer after he withdrew charges against two of the four people who allegedly tried to bomb Gushungo Dairy plant last month.
Mpofu submitted that every arrest is prima facie unlawful and must be justified. He added that in terms of the law, it is the National Prosecuting Authority represented by the PG that has powers to prosecute and to that end the office of the PG was not aware that Tomana was being prosecuted.
He argued that it, therefore, meant this was a police prosecution and the police were running the process.
Mpofu also said his client cannot be disciplined outside the provisions of the Constitution which speaks of a tribunal to investigate him for misconduct.
The defence counsel said it was only the Constitution that can protect individuals from those who wield power or dislike certain persons and to that end the courts should protect the Constitution.
After his submissions, the State said it was opposing the application and wanted more time to craft its response.
“The State is opposing the application. The State is applying to have the matter remanded to tomorrow (today) so that we can prepare a solid response to the application,” Gwinyai Shumba said.
This prompted Mpofu to ask the court to have the State make an undertaking that it would deliver on its promise or that it forfeits its right to respond.
The case continues today.