Chihuri, Tomana won't join Kereke suit against Gono

Police chief Augustine Chihuri and prosecutor-general Johannes Tomana have decided to pass on a lawsuit lodged by Bikita West Zanu-PF MP Munyaradzi Kereke, who is seeking to push the Zimbabwe Anti-Corruption Commission (Zacc) to investigate retired Reserve Bank governor Gideon Gono on corruption charges.

The move could snuff out the brewing controversy for Kereke who wanted the prosecutor-general and the commissioner-general of the Zimbabwe Republic Police joined to his Constitutional Court (Con-Court) suit, which contain untested graft allegations against Gono, allegedly committed during the time he was at the helm of the central bank.

Gono resigned as RBZ governor in November last year at the end of his second five-year term, and is due to take up a seat in the Senate.

Both Chihuri and Tomana unanimously rejected any participation in Kereke's suit in papers lodged in the Con-Court this week, partly to avoid reputational harm that they feared could result from signing on, and that the suit has nothing to do with them.

Kereke has argued that the failure by Zacc to investigate allegations of abuse of office and corruption was unconstitutional, adding the anti-graft body has an obligation to receive and consider complaints from the public.

Kereke asked the Con-Court to declare Zacc's refusal to investigate the matter unconstitutional and also order that Chihuri and Tomana be joined as party to the proceedings.

In declining to support the litigation, Tomana said that such a joinder would not assist the court or anyone in the matter.

"This is so because I am the prosecutor-general and my mandate does not include investigating criminal allegations," Tomana said in his deposition.

"Rather, my duties entail prosecuting matters that would have been investigated by the relevant office, namely the police."

Chihuri stated in his deposition that this was a clear case in which Kereke was unnecessarily making him "dig deep" into his pockets to respond to his bid to join him on his proceedings against Gono.

"This is especially so in view of the fact that the joinder of fourth respondent (Chihuri) that applicant (Kereke) seeks in this application is misplaced in that there is nowhere in his founding affidavit or in the main application that he contends that he made a report at any police station regarding allegations of corruption against first respondent (Gono)," Chihuri said in his opposing affidavit.

"Without any indication that the applicant made a report at any police station, this would be a case where the fourth respondent (Chihuri) is unnecessarily being dragged into a matter in which he has no interest."

While Kereke's suit seeks a Con-Court order that Parliament puts in place "appropriate safeguards to preclude future Central Bank governors from abusing their offices through excessive borrowings from the same institutions they are supervising", Tomana said he has no mandate to do what Kereke seeks and that there was no reason why he should be joined as a party to the maverick economist's proceedings against Gono.

"The applicant should fight his battles with the relevant authorities or offices," Tomana said.

"Joining me as a party to the proceedings will therefore not take the matter any further as it is not within any of my duties to do any of the acts the applicant wants me to."

Both Chihuri and Tomana prayed that Kereke's application ‘‘be dismissed with costs."

While Kereke argued that his intended joinder was "in the interest of justice," Zacc chairman Denford Chirindo questioned why Kereke did not seek the joinder from his founding affidavit.

Chirindo argued that Chihuri was naturally involved in the process as it was common cause that Zacc does not arrest and can only do so through the police.

"It is my contention that the fourth respondent (Chihuri) is involved by operation of law," Chirindo argued.

"On that basis, I contend that an order for joinder is unnecessary. The same applies to third respondent (Tomana). He is involved by operation of law."

Chirindo argued that Tomana was granted independence by the Constitution from interference by all arms of the State , and cannot brook any interference even from the courts.

"Clearly, the order sought, seeks to bridge and remove such independence," Chirindo argues.

"The order sought seeks to make the court the arresting officer, the investigator and the trial officer. The relief sought in this matter and in the main classically seeks to break the law and cause confusion on the various organisations involved in the administration of justice."

Gono has argued that he conducted business on behalf of the RBZ and if ever the central bank had issues with him, then it was supposed to be the complainant.

He said the RBZ was an interested party, considering that in the event of the court ordering an investigation, the central bank would be required to open and avail its books and official documents, among other requisites.

Kereke claims Gono bribed officials from Zacc, alleging huge amounts of money were moved from the central bank to the commission, but Zacc officials say it was infact Kereke who authorised the transaction.

Gono said allowing such a claim to succeed would open a floodgate of "frivolous and vexatious applications."

He said Kereke was approaching the court with dirty hands, basing his allegations on malice, adding that the former advisor had flouted his conditions of service, including the bank's code of conduct.

Gono said Kereke had made several claims including treating him like a criminal by laying false allegations, yet he had not been tried and convicted.

He argued that for Kereke's application to succeed, it must be established among other issues, whether the claim is justiciable or if the Constitutional Court has the jurisdiction to grant the remedy sought.