'Tomana has case to answer'

Prosecutor-General Johannes Tomana should remain on remand because there is reasonable suspicion that he committed an offence, Harare provincial magistrate Mr Vakayi Chikwekwe said yesterday.

Tomana is facing charges of criminal abuse of office, or alternatively defeating the course of justice after he authorised the release of two suspects linked to an alleged attempt to petrol-bomb the First Family's Alpha Omega Dairy.

Mr Chikwekwe said the law only provided for Presidential immunity.

"The person who enjoys immunity from arrest or prosecution is specifically stated in Section 96 of the Constitution.

"The section provides for Presidential immunity while in office and no other person.

"Accused does not enjoy immunity from prosecution or arrest as contemplated in Section 174 (1). If the legislature intended to exclude the accused or his office, they should have mentioned it. The Constitution is binding on every person," he said.

Mr Chikwekwe said Section 260 of the Constitution, which Tomana was using to buttress his independence, should not be read in isolation but together with Section 261 to make it complete.

Tomana, in his application challenging his placement on remand, argued that the police had no powers to arrest him, adding that his arrest was a violation of constitutional provisions guaranteeing his independence and protection from intimidation in the exercise and discharge of his functions.

However, Mr Chikwekwe said the police acted within the confines of the constitutional mandate.

"As far as the police are concerned, there is a reasonable suspicion that the accused committed an offence.

"As long as there is reasonable suspicion, the police can arrest any person.

"At this stage I am convinced that the police acted within the confines of the constitutional mandate. To dismiss the police's allegations at this stage might not be in the interest of justice. I am convinced the arrest was within the confines of the law," he said.

Tomana, through his lawyers Advocate Thabani Mpofu instructed by Mr Tazorora Musarurwa and Mr Alex Mambosasa, also argued that prosecutor Mr Gwinyai Shumba and Mr Timothy Makoni had no right and powers to prosecute him since they were his juniors who acted on his instructions.

In response, Mr Chikwekwe said it was not proper for Tomana to argue that he did not authorise the prosecution.

"These two (Shumba and Makoni) derive their authority from the certificates they have which are still valid. The prosecuting certificates they have are not withdrawn hence accused cannot revoke them while in the dock by word of mouth.

"They are properly before this court and can prosecute anyone accused of committing an offence, including the accused person," Mr Chikwekwe said.

On the sufficiency of the allegations, Mr Chikwekwe said allegations against Tomana were not defective. He said they were sufficient enough to constitute an offence.

He added that there is a nexus linking Tomana to the alleged illegal conduct.

"It is that conduct which forms the basis of the allegations against the accused," he said.

Mr Chikwekwe said the State must be given a chance to prove its case and accused also must be given time as well to defend himself so that the court would decide after hearing arguments.

"I am of the opinion that the accused should remain on remand. There is reasonable suspicion that he committed the offence," he said.

The matter was remanded to March 7 and Tomana notified the court of his intentions to make an application for refusal of further remand if the State fails to furnish him with a trial date on that day.

It is the State's case that Tomana withdrew charges against Silas Pfupa and Solomon Makumbe before plea and turned them into State witnesses.