Tomana's foreign judge bid thrown out

PROSECUTOR-General Johannes Tomana yesterday lost his bid to have his dispute with the Judicial Service Commission presided over by a retired or a foreign-based judge.

The High Court dismissed his application for referral of the matter to the Constitutional Court. In the dismissed application, Tomana had raised constitutional issues, chief among them being that serving judges of the High Court would not handle his case fairly.

Tomana is seeking to block the JSC from continuing with proceedings that could lead to his removal from office. While the main challenge was pending, Tomana filed an urgent chamber application at the High Court seeking to bar the JSC from either suspending him or setting up a tribunal for determination of his fitness to remain in office.

In the middle of the urgent chamber proceedings, Tomana raised constitutional questions alleging possible bias if serving High Court judges hear his matter.

He argued that all sitting judges of the High Court, who are subordinates to Chief Justice Godfrey Chidyausiku, would not be able to criticise or uphold the conduct of their boss.

This was because Chief Justice Chidyausiku, apart from being the head of all judges, is also the chairperson of the commission (JSC) that instituted proceedings for his possible removal from office.

Yesterday, Justice Lavender Makoni dismissed the application for referral of the matter to the Constitutional Court. The judge described Tomana's application as frivolous. "In the result, the applicant has failed to establish a factual basis for his request for referral to Constitutional Court.

"The reasons he advanced are groundless, utterly hopeless and without foundation in the facts on which they are purportedly based. I'll therefore make a finding that the request is frivolous," ruled Justice Makoni.

She did not make any order for costs. "The application is dismissed. There'll be no order as to costs," the court ruled. The judge said Chief Justice Chidyausiku was the head of two distinct offices and his position as JSC chairperson did not affect his judicial powers as a judge.

"With regard to the conflicted position of the Chief Justice, the applicant is falling into error of conflating the two distinct functions of the Chief Justice as provided for in the Constitution.

"In one of the offices, he'll be exercising his judicial powers as a judge and in the other, administrative powers as head of the Judicial Service Commission.

"The decision he makes using his administrative authority can be reviewed by any judge in the ordinary way. In any event, the issues that the applicant raises in the urgent chamber application are legal issues," said Justice Makoni.

Tomana faces possible removal from office due to non-compliance with court orders. He is facing criminal charges at the Harare Magistrates' Courts involving the attempted Gushungo Dairy bombing.

In October last year, he was slapped with a 30-day term of imprisonment for contempt of court after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Munyaradzi Kereke and Telecel shareholder Jane Mutasa.

Kereke is accused of raping an 11-year-old relative while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars. Tomana was fined by a nine-member judge's panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.

The sentence was, however, wholly set-aside on condition that he complied with court orders and issue private prosecution certificates to Francis Maramwidze and Telecel, failure of which he would be barred from practising as a lawyer in Zimbabwe.