ZIMBABWE – Powers to prosecute are not vested in an individual, but in the National Prosecuting Authority, contrary to claims by arrested Prosecutor General Johannes Tomana in a case in which he is challenging his placement on remand, the State has said.
Tomana is arguing that his arrest for allegedly releasing suspects who wanted to petrol bomb the First Family’s Alpha Omega Dairy was unconstitutional.
Tomana said prosecutions were conducted under his authority and in this case he had not instituted the criminal process.
But prosecutors Mr Gwinyai Shumba and Mr Timothy Makoni said the new Constitution vested prosecutorial powers in the NPA, a change from provisions of the old Constitution.
They said the Prosecutor General was only a member of the National Prosecuting Authority. Tomana, through his lawyer Advocate Thabani Mpofu instructed by Mr Tazorora Musarurwa and Mr Alex Mambosasa, also argued that Mr Shumba and Mr Makoni had no right and powers to prosecute him since they were his juniors.
But the two said prosecutors do their work on behalf of the State not the Prosecutor General.
“The certificates given to individual prosecutors is merely evidence of title given by the PG to an individual prosecutor to prosecute on behalf of the State,” they said.
“In fact, the saving provisions of the NPA Act make it clear that all prosecutors who had the title to prosecute shall continue with the same title to prosecute in all matters.
“There is no requirement of law that in each emerging case, the PG grants authority to prosecute.”
Tomana said he was immune to prosecution, hence his arrest was a violation of constitutional provisions guaranteeing his independence and protection from intimidation in the exercise and discharge of his functions.
But the State said: “It is clear that the law only immunises the President during the pendency of his office and not after he has ceased holding office. The immunity that the accused wants to legislate for himself in the constitution if necessary must be by way of constitutional amendment and referendum. The independence which the PG enjoys does not entail acting arbitrarily and contrary to the dictates of the law.”
The State agreed with the defence that the police take directives from the PG, but they argued that section 219 of the Constitution which provides for the police service and its functions did not exclude criminal abuse of duty by State functionaries from being detected.
The State further argued that most issues raised by Tomana in his application were liable to trial, adding that the application was not sound at all as the constitution placed everybody below the law.
The magistrate Mr Vakayi Chikwekwe ordered the State to recall the investigating officer Assistant Commissioner Thulani Ncube on the witness stand and clarify the validity of Tomana’s arrest.
Asst Comm Ncube said Tomana’s arrest was not illegal, adding that he was the one who instructed his subordinates to arrest him.
Advocate Mpofu questioned who the complainant was in the matter.
“You made yourself the complainant, you caused his arrest and you took the decision to take him to court so that he be prosecuted,” he said. “From what you have said, do you see that this is a police prosecution.”
After hearing submissions from both counsels, Mr Chikwekwe remanded the matter to Monday next week for ruling.
Tomana is facing criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice after he allegedly ordered the release of Silas Pfupa and Solomon Makumbe suspected of trying to petrol-bomb the First Family’s Alpha Omega Dairy farm in Mazowe.
Tomana reportedly directed the withdrawal of charges before plea against Makumbe and Pfupa and unilaterally suggested that they be treated as witnesses.