AFTER the Judicial Services Commission (JSC) initiated the process of removing the country’s Prosecutor General (PG), Johannes Tomana, from office on grounds of being unfit to continue holding the position in the aftermath of his conviction by the Constitutional Court (ConCourt) late last year on contempt of court charges, if there is anything that the embattled lawyer is having in dangerously short supply, it is public sympathy.
While the country’s chief law officer is adamant that he should not be subject of a probe into his fitness to remain in the esteemed office, legal minds say it is only a question of time before Tomana is job-hunting.
Despite his vehement protestations against the move by the JSC, lawyers said the fact that he did not volunteer to resign in the aftermath of his conviction of very serious charges of violating the supreme law of the land that he undertook to protect in his oath of office, the legal process to remove him from office was long overdue.
On February 12, JSC chairman, Chief Justice Godfrey Chidyausiku, wrote to Tomana asking him to show cause why disciplinary proceedings against him should not be instituted in the face of his conviction in cases that constitute serious violation of the country’s Constitution.
“It is the view of the Judicial Service Commission that they both speak to your suitability to continue to hold the office of Prosecutor-General,” reads Justice Chidyausiku’s letter to Tomana.
“On the basis of these judgments, the JSC is of the view that a prima facie case exists for it to act in terms of Section 259(7), as read with Section 187, of the Constitution of Zimbabwe, subject to any submissions you may wish to make in this regard,” Chidyausiku wrote.
In October last year, the ConCourt convicted Tomana of wilful defiance of court orders in cases in which the High Court and the Supreme Court had ordered him to issue certificates for private prosecution in two cases involving Bikita West legislator, Munyaradzi Kereke and Telecel shareholder, Jane Mutasa that his office had refused to prosecute.
He was sentenced to a 30-day prison sentence, which was suspended on condition that he complied with the outstanding court orders.
It was after his conviction and a pending jail term that Tomana — who stridently argued that such orders interfered with the constitutional independence of his office — only complied.
After his conviction, there were calls for the PG to resign, which calls Tomana pointedly ignored.
At the time, legal expert, Alex Magaisa pointed out that the fact that Tomana had been convicted by the ConCourt of gross misconduct automatically disqualified him from the PG’s position.
“Is a man who has been found to be in contempt of court and to have violated the Constitution by the highest court in the land still a fit and proper person to hold the important office of the PG? As the PG, Tomana has a constitutional duty under Section 261, to uphold the Constitution and the law of the land. The ConCourt has found him to be in breach of the Constitution and to be in contempt of court, both of which constitute a contravention of the PG’s duty under Section 261 of the Constitution,” Magaisa pointed out.
“Further, in grounding its decision on the basis of its role under Section 165(1)(c), in regard to ‘safeguarding…the rule of law’, the ConCourt was making the statement that the PG’s conduct had violated and undermined the rule of law. Therefore, a question arises whether a person who wilfully undermines the rule of law is a fit and proper person to hold such a high office.
“It is arguable, on these grounds that the PG falls short of the standards required of a person occupying that office. Can the public have confidence in a person who is prepared to and has been found by the highest court in the land to be in violation of the Constitution and the rule of law? Does he still have the moral authority to prosecute other persons for violating the law of the land when he himself has been found guilty of violating the highest law of the land? It is hard to find an answer to these questions in the affirmative. The PG has been found to have wilfully disobeyed the Constitution and court orders or at the very least to have been reckless as to the consequences of his conduct. How does he call upon others to be law-abiding citizens when he himself has failed and/or refused to do the same?”
The latest move by the JSC appears to confirm Magaisa’s misgivings.
Instead of responding to charges of his wilful disregard of court orders, Tomana instead responded to the JSC’s move by filing an urgent chamber application in the High Court seeking to stay the process, challenging his conviction by the ConCourt.
He argued that the process seeking to remove him from office was unlawful.
In the application, in which he cited the JSC and Justice, Legal and Parliamentary Affairs Minister, Emmerson Mnangagwa, as respondents, Tomana challenges the validity of the process.
“I seek a declaratory order bearing on the invalidity of the process which has been commenced by the first respondent (JSC) purportedly in terms of section 187 of the Constitution of Zimbabwe,” Tomana said in an 11-page affidavit.
“Pending determination of this matter, I seek in the interim a temporary interdict stopping the commencement of the process.”
Tomana argues that the ConCourt judgment that committed him to jail unless he issued certificates for private prosecution was issued from a court of no jurisdiction.
“The orders I was held to have been in contempt of are orders of the High and Supreme Courts respectively,” said Tomana.
“Compliance with those orders is enforced by the High Court. In fact, as at the date of the order of the Constitutional Court, proceedings for contempt had been instituted in the High Court. The Constitutional Court has no jurisdiction to relate to a matter which was within the purview of the High Court.”
He argues that the order was also invalid in that the ConCourt dealt with a matter that was not before it.
He argues that the ConCourt cannot at law deal with contempt of court matters.
He says the matter that was before the ConCourt was an ex-parte application he had made, which sought a declaration on the question of the independence of his office.
He further argues the proceedings that gave rise to the ConCourt order were a nullity given that the Deputy Chief Justice, Justice Luke Malaba, was not part of the bench when the order was granted.
“Constitutionally, the Constitutional Court cannot be properly constituted within the first seven years of its life if it does not consist of the Chief Justice and the Deputy Chief Justice who must sit together in hearing any and every matter,” he argues. “An order by an improperly constituted court is obviously a nullity.”
In the meantime a private citizen, one Rooney Kanyama, has since filed a Constitutional case challenging the validity of the ConCourt order committing Tomana to jail on the contempt of court charges.
However, another lawyer, writer Petina Gappah, says there is nothing wrong with the JSC’s process, as the bottom-line remains that by wilfully disregarding valid court orders, Tomana committed an act of gross misconduct, which warrants his removal from office.
“If this is really what Tomana is arguing, he is an embarrassment as a lawyer. So, let’s break this down: 1. The reason Justice Chidyausiku is overseeing this matter is that he is the head of the JSC. It is not because he is the Chief Justice. 2. The Judicial Services Commission not only appoints judges, it can also recommend their dismissal. 3. It is true that Tomana, as Prosecutor General, is not a judge, but under the Constitution he is given the status of a judge in that firstly, the Constitution requires that the Prosecutor General should have the same qualifications as a Supreme Court judge and secondly, the Constitution also states that the “provisions relating to the removal of a judge from office apply to the removal of the Prosecutor General from office”.
4. The relevant provision states that: a judge may be removed from office for gross incompetence or gross misconduct. 5. Tomana’s failure to uphold court rulings is the gross misconduct here. It does not matter which court issued those rulings, the point is, he did not uphold them.
“This is the gross misconduct alleged by Justice Chidyausiku — Tomana’s failure to uphold court judgments. When the chief legal officer suggests he is above the law, it is time for him to go!”
Tomana was appointed in 2009 (then as Attorney General) to replace Sobusa Gula-Ndebele who had been removed from the position on similar charges after being arrested in 2007 for allegedly assisting a fugitive banker to safely return from abroad.
His appointment by President Robert Mugabe in the early days of the inclusive government when the President was supposed to make such an appointment after consulting the then Prime Minister, Morgan Tsvangirai, caused uproar as his appointment was seen more as political than professional.
Lawyer and opposition politician, Jacob Mafume, this week told the Financial Gazette that it was strange that Tomana is now trying to seek refuge in the Constitution when upon his appointment it was very clear in the private forum of his conscience that his appointment was never a professional one as he was not the best qualified for the job, hence his position depended on the vagaries of politics.
“Tomana did his job in such a way as if he was only answerable to the President…now (that) he is under attack he remembers the Constitution,” Mafume said.
Despite his office requiring total neutrality, Tomana has in the past declared his allegiance to the ruling ZANU-PF party and in 2014 even vehemently defended this strange position before the Parliamentary Portfolio Committee on Legal, Justice and Parliamentary Affairs.
Tomana is currently suspended from his position as he is facing charges of criminal abuse of office after he allegedly set free some of the suspects arrested in a case involving a plot to bomb President Mugabe’s private business, Alpha and Omega Dairy.
What makes his case even tricky is that in the event that the JSC finally investigates him, it will make its recommendations to President Mugabe.
With the factional wars raging in the ruling ZANU-PF party, it is yet to be seen how legal arguments alone can help keep Tomana in his current position.
Meanwhile, his detractors like Mafume would continue rubbing their bellies in gleeful anticipation of his eventual departure.
The Spaniards have a saying that “every pig gets its Martinmas”.
St Martins Day is the day when Spaniards have the biggest pork festival, on which day even those pigs that consider themselves untouchable find themselves at the slaughterhouse.
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