Tomana fights against 'unconstitutional' arrest

The State yesterday requested more time to prepare its response to Prosecutor-General Johannes Tomana's application in which he is challenging his placement on remand arguing his arrest was unconstitutional.

Tomana said prosecutions were conducted under his authority and in this case he had not instituted a criminal process.

On Tuesday Tomana, through his lawyer Advocate Thabani Mpofu, instructed by Mr Tazorora Musarurwa and Mr Alex Mambosasa, submitted a written application and said they were also going to present oral submissions, which they did yesterday.

Prosecuting, Mr Gwinyai Shumba and Mr Timothy Makoni told the court that they were opposing the application and sought a postponement of the matter to today to have time to prepare a detailed response.

"Your Worship, we failed to respond to the application today because we felt the application was not complete since they had highlighted that they were going to add oral submissions. Having heard their submissions, we now seek for a postponement of the matter to tomorrow (today) and we undertake to submit written submissions," Mr Shumba said.

In response, Adv Mpofu said the State should be made to respond today.

He said they should have responded yesterday since the defence had given notice of their intention to make an application on the initial appearance.

In his application, Tomana argued that Mr Shumba and Mr Makoni had no right to prosecute him as prosecutions were conducted under his authority.

"Prosecutions are conducted in my name and under my authority. I now happen to be an accused person under a criminal process which I have not instituted and which is not under my name and authority. That is obviously a misnomer," he said.

"The prosecution itself was invalid as it was not authorised by me or by any of the decision-makers in my office. It was essentially a prosecution by the police as it was instigated under their authority," he said. Tomana warned those behind his arrest to stop it.

"My placement on remand is highly irregular. It must be nullified retrospectively. Every minute that I remain on remand the Constitution suffers an unwarranted violation.

"That must be brought to an end. Those behind this process must STOP IT!!!" said Tomana in an affidavit submitted in court on Tuesday in support of his application.

He said the allegations levelled against him did not constitute a criminal offence. "My arrest, having been unlawful, no valid placement on remand could ensue thereon. These allegations do not constitute a criminal offence. There is therefore no lawful basis upon which I have been placed and have remained on remand," said Tomana.

He said his arrest was a violation of constitutional provisions guaranteeing his independence and protection from intimidation in the exercise and discharge of his functions. Tomana said it did not take a rocket scientist to discern that the arrest and detention was patently illegal and a most grave violation of his powers, duties and functions that are provided for in Section 12 of the National Prosecuting Authority Act {Chapter 7:20}.

"It is an elementary principle of law and practice that I am entitled, as a matter of unfettered and unrestrained discretion, to choose whom to prosecute and whom to utilise as a State witness. None can interfere with the manner in which I discharge my duties, functions and exercise my powers," he said.

"This interference with my office is a blatant and shameless violation of constitutional provisions which guarantee my independence. How can I function independently, fearlessly and impartially when the police are free to arrest me for discharging a clear-cut prosecutorial function," Tomana said.

He said he could not be pressured into making a decision by anyone as the responsibility for the decision to prosecute or not to prosecute rests with him."I wonder who authorised the preference of these particular charges . . .," he said.

In his oral submissions, Adv Mpofu said proceedings unknown to the Prosecutor-General were unlawful. He added that constitutionally, the PG had authority over the Police Commissioner-General whom he said reports to Tomana. "So to have a situation whereby police prosecute the PG is unconstitutional," he said.

He added: "When the police arrested him, he was arrested together with Chief Law Officer Michael Mugabe whom they later freed and made him a witness. They decided to make Tomana the accused. Clearly they used their powers to choose who the accused or witness was yet they are questioning a similar decision which was made by Tomana using his powers and authority, how can that be? A sensible man cannot take the route that the police took in arresting the Prosecutor- General," he said.

Mr Chikwekwe rolled over the matter to today.

Tomana is facing criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice after he allegedly ordered the release of Silas Pfupa and Solomon Makumbe, both suspected of trying to petrol-bomb the First Family's Alpha Omega Dairy farm in Mazowe. Tomana reportedly directed the withdrawal of charges before plea against Makumbe and Pfupa and unilaterally suggested that they be treated as witnesses.