Tomana arrested after being suspended by Mugabe

SUSPENDED Prosecutor General Johannes Tomana was yesterday arrested as he was leaving Harare Magistrates Court following a successful application to have the magistrate presiding over his trial recuse himself.

Tomana, who was suspended on Thursday to pave way for a disciplinary hearing on various charges of improper conduct, is now facing five more charges of criminal abuse of office, according to his lawyer Advocate Thabani Mpofu who confirmed the arrest.

"He has been arrested by the same officers from Law and Order who initially arrested him on the charges he is currently on trial for," said Adv Mpofu.

"They added five more charges of criminal abuse of office for things he is alleged to have done when he was still the Attorney General." The five charges involve criminal trials of Bright Matonga and former Zupco board chairman Professor Charles Nherera, among others.

Chief police spokesperson Senior Assistant Commissioner Charity Charamba confirmed the arrest. "He has been arrested and is facing five counts of criminal abuse of office as a public officer or alternatively defeating the course of justice," she said. Tomana was last night still assisting police with investigations and will appear in court soon.

In November last year, Tomana was at the centre of a storm for allegedly abusing the court process to rubber-stamp the acquittal of Professor Nherera in November 2009 after the Zupco boss was charged with corruption.

The abuse reportedly occurred at a time Tomana was the Attorney General. Prof Nherera, who had served a two-year prison term, was acquitted by the High Court barely a year after Tomana was appointed to the post of AG. Following his acquittal, Prof Nherera sued businessman Mr Jayesh Shah for malicious prosecution and demanded damages to the tune of $400,000.

But Mr Shah, through his lawyer Advocate Lewis Uriri, applied for absolution from the instance and Justice Nicholas Mathonsi, in a judgment, accepted Adv Uriri's argument that Prof Nherera was "crucified and resurrected by the same office", and allowed the application.

Tomana invoked provisions of Section 35 of the High Court Act to quash Prof Nherera's conviction. Under the Act, the quashing of an appeal is made upon the prosecution consenting to the appeal.

The court noted that Tomana was the legal advisor to Zupco, which was involved in the criminal prosecution of Prof Nherera at the time, as well as his legal representative in addition to being a board member of Zupco. Further, Justice Mathonsi noted that Tomana testified in defence of Prof Nherera during trial and made it clear that he had no case to answer.

On Thursday Tomana, through his lawyers, queried why Harare provincial magistrate Vakayi Chikwekwe, who dealt with his several initial applications, was now the trial magistrate in the case in which he is accused of ordering the release of two men - Solomon Makumbe and Silas Pfupa - suspected of trying to petrol-bomb the First Family's Alpha Omega Dairy Farm in Mazowe.

Tomana said Chikwekwe heard and assessed evidence during bail application and several interlocutory applications. In his ruling, Chikwekwe said: "The application has merit. I've dealt with several applications concerning the accused person and in the best interest of justice, I formally recuse myself and the matter will be dealt with by another magistrate."

He, however, did not disclose the name of the magistrate to take over the case and remanded the matter to July 20. On Thursday, President Mugabe gave a disciplinary tribunal set up to determine Tomana's suitability to continue holding his office three months to conclude the matter starting on July 25.

The President appointed Advocate Ray Goba acting PG during the three months of the disciplinary proceedings. On the same day, the President swore in the tribunal, comprising chairperson retired High Court Judge Justice Moses Chinhengo, University of Zimbabwe Dean of Law Emmanuel Magade and Harare lawyer, Melina Matshiya at State House in Harare.

President Mugabe, in terms of Section 187(3) of the supreme law of the country, must establish a tribunal upon receiving recommendations from the Judicial Service Commission. In terms of Section 187(4), the tribunal must consist of at least three members.The chairperson of the tribunal must be someone who once served as a judge of the Supreme or High Court.