Pressure piles on Tomana

PROSECUTOR General Johannes Tomana has been asked to resign by MPs and lawyers after being slapped down by the Constitutional Court for defying court rulings.

Tomana had become a "god" and law unto himself by ignoring High Court orders compelling him to issue certificates for private prosecution in two separate cases - one against an alleged paedophile and another against an alleged fraudster.

Chief Justice Godfrey Chidyausiku, sitting with a full bench of the ConCourt, slapped Tomana with a 30-day prison sentence after he refused to allow complainants whose criminal cases would have been declined by the National Prosecuting Authority to pursue private prosecutions.

The sentence was wholly suspended on condition Tomana complies within 10 days.

Harare MP Jessie Majome (MDC-T) accused Tomana of pursuing a "paedophillic and cleptocratphilliac prosecuting policy", adding that President Robert Mugabe should appoint a tribunal to "investigate the question of Tomana's necessary removal from office."

Majome, a lawyer by training, claimed Tomana was "working his hardest to demonstrate that he is utterly unfit for the crucial post".

"First, it was the abomination of supporting child marriage when he should be prosecuting offenders in terms of Section 3 of the Domestic Violence Act (Chapter 5:16) that he is evidently ignorant of," she blasted.

"Next was his warped view of his powers and independence as Prosecutor General, of believing that he is higher than the law and the courts and is the last word in prosecution, and even throwing his weight like a bull in a China shop to intimidate his justified critics for the delusional 'offence' of undermining the authority his office."

Harare lawyer Gift Mutisi said the ConCourt had shown that there must be separation of powers.

"What the Prosecutor General was doing was a bit abnormal, he must not overrule the court. In a democratic society, the PG can't have powers to everything, there're limitations for everyone, even the President has limitations," said Mutisi.

"No individual can have powers to do as he pleases in a country with a constitution."

Umzingwane legislator Priscilla Misihairabwi-Mushonga (MDC) said the ruling by the ConCourt was a victory for children's rights after Tomana earlier refused to issue a private prosecution certificate against businessman and Zanu-PF MP Munyaradzi Kereke, who is accused of raping an 11-year-old relative at gunpoint.

She said: "It's a victory for women because the women's movement has been pushing for the young woman who was allegedly abused to get justice.

"The test case was about a girl child who had been denied a chance to justice but today it's her day in court."

Misihairabwi-Mushonga commended the ConCourt for "clipping Tomana's wings".

"The PG was now a god, if he says he's not interested in giving a certificate for prosecution that's it. There could be many cases that die at the door of the PG. What about other cases where the people have no power to push to get justice?"

She slammed MPs for failing to protect the people they represent.

"As parliamentarians we must be ashamed of ourselves. The courts have taken the role of the legislature; it has taken the judiciary to protect the populace," Misihairabwi-Mushonga told The Chronicle.

"Last week when we were making amendments on the age of consent [now raised to 16 from 12], we were expecting support from other women parliamentarians but they failed to support us."

Bulawayo lawyer Tanaka Muganyi said the ConCourt had shown that there is some rule of law in the country.

"The ruling by the Concourt is commendable and the PG has been put in his rightful place. His actions or decisions in any matter have to respect the constitution. No individual is above the law," said Muganyi.

Muganyi said Tomana, if he had been allowed to continue defying court orders, would have set a dangerous precedent.

"The Prosecutor General is the custodian of the law, he must lead by example. What precedence would he be setting if he fails to follow court orders? His post is a constitutional post and it has to follow the rules. Court orders should be followed in their entirety," said Muganyi, who also said the PG should be seen to be exercising impartiality.

Chief Justice Chidyausiku, in sentencing Tomana for contempt of court, warned him that he would be banned from practising as a lawyer should he fail to issue the private prosecution certificates within 10 days.

In June, Tomana sparked national outrage when he said girls as young as nine must be allowed to start families with older men if they are "idle".

MPs and First Lady Grace Mugabe slammed the AG, before forcing through new amendments to the law in Parliament which raised the age of consent to 16 from the present 12 in the Criminal Procedure and Evidence Act.