Court slams Tomana for persecuting suspects

The High Court has blasted Prosecutor General Mr Johannes Tomana for filing delayed appeals and approaching the courts at his own time without considering the rights of the suspects involved.

Dismissing an application by Mr Tomana in his official capacity for permission to contest the acquittal of prominent lawyer Mrs Beatrice Mtetwa on obstruction of justice charges some five months later, Justice Garainesu Mawadze said the decision by the prosecution amounted to persecution of suspects.

Mrs Mtetwa, who is board chairperson of the Zimbabwe Lawyers for Human Rights, was arrested in March 2013 for allegedly defeating the course of justice and she was acquitted in November the same year.

Five months down the line, the prosecution approached the High Court with an application for leave to appeal.

Mrs Mtetwa raised three preliminary points in the matter, two of which were upheld, resulting in the dismissal of the case without getting into the merits.

She successfully argued that there was an inordinate and unexplained delay, which was prejudicial to her.

The court also agreed with Mrs Mtetwa that the PG had cited a wrong section of the law as his basis for the High Court challenge.

Justice Mawadze ruled that the PG had no right to approach the courts with delayed applications as and when he wishes.

"I have no doubt in my mind after considering the facts of this matter that it should be made abundantly clear to the Prosecutor General that the Prosecutor General is not at liberty to come to this court any time the Prosecutor General so wishes and seek leave to appeal.

"Such conduct should be frowned upon by this court and ought to be admonished without any hesitation by dismissing such an application for leave to appeal," ruled Justice Mawadze.

The judge said the PG's decision was more of persecution than prosecution of the accused person.

"I have no doubt in my mind that the time taken to approach this court is inordinate and that there was great need for the applicant to fully explain this delay of five months in view of the facts of this case.

"While I appreciate that there is no timeframe in the relevant provision to bring this application, it should be noted that this is not a blank cheque for the Prosecutor General to bring such an application at any time," he said.

Justice Mawadze said the late filing of the appeal was a violation of an acquitted person's rights.

"I wish to clearly point out that such a delay should always be juxtaposed with the rights of an accused person who would have been acquitted by a competent court…

"Such an accused person would have gone home to celebrate with family and friends only to be told some five months later that the celebration is premature and that the battle has just begun.

"The inference one can therefore draw is that such conduct ceases to be prosecution but persecution, as such delay is not only unreasonable and prejudicial to an accused person but flies in the face of Section 69 of the Constitution," the judge said.

Mrs Mtetwa was arrested as she sought to assist her four clients from then Prime Minister Morgan Tsvangirai's office — namely Tabani Mpofu, Felix Matsinde, Anna Muzvidziwa and Worship Dumba — who were facing allegations of contravening the Official Secrets Act.

She was accused of shouting obscenities at the detectives carrying out a search at Mpofu's house and declaring the police's actions unconstitutional.

She was also accused of disturbing or hindering the police from carrying out their duties.