Tomana must be sacked: Experts

HARARE – Prosecutor-General Johannes Tomana must resign from his post with immediate effect following his 30-day jail sentence by the Constitutional Court for defying court orders, legal experts and opposition politicians said.

Tomana was slapped with the jail term on Wednesday after he refused to authorise the private prosecution of rape-accused Zanu PF legislator Munyaradzi Kereke and businesswoman Jane Mutasa as ruled by both the High Court and the Supreme Court.

Writing on his blog, UK-based constitutional law expert Alex Magaisa said Tomana had violated the country’s constitution which meant that he now fell short of the standards required of a person occupying his office.

Magaisa said the public could also not have confidence in a person who violated the country’s laws that he was supposed to superintend over, adding that Tomana no longer had “the moral authority to prosecute other persons for violating the law of the land when he himself has been found guilty of violating the highest law of the land”.

“The PG has been found to have wilfully disobeyed the Constitution and court orders or at the very least to have been reckless as to the consequences of his conduct.

“How does he call upon others to be law-abiding citizens when he himself has failed and/or refused to do the same”? Is a man who has been found to be in contempt of court and to have violated the Constitution by the highest court in the land still a fit and proper person to hold the important office of the PG?” he asked.

He noted that the Constitution of Zimbabwe required that for one to hold the office of Prosecutor-General, he or she “must be a fit and proper person”.

MDC spokesperson Obert Gutu was also scathing in his assessment of Tomana, saying that he “should proceed to do the honourable thing and tender his resignation as the Prosecutor-General forthwith”.

“His position is now very untenable. His image has been irretrievably battered. He is no longer fit for purpose,” Gutu said, adding that Tomana was a senior public official who was at par with a judge of the Supreme Court.

“We are now anxiously awaiting notification that Johannes Tomana has duly resigned as the Prosecutor-General of Zimbabwe. Anything short of this will not be acceptable.

“At any rate, should he refuse to voluntarily step down from office, the relevant Constitutional provisions for his removal from the office of Prosecutor-General  should be promptly activated,” Gutu said.

Magaisa also suggested that President Robert Mugabe should move to activate the procedures for removing Tomana from office, as provided for under section 259 (7) of the Constitution.

The constitution states that, “the provisions relating to the removal of a judge from office apply to the removal of the Prosecutor-General from office”.

The grounds provided for in section 187 of the Constitution are that a PG can be removed for either inability to perform his functions or due to mental or physical incapacity, gross incompetence or gross misconduct.

Magaisa submitted that of the three grounds, the last two were the most relevant in the present circumstances, adding that at the end of the day, as with most matters in Zimbabwe, Tomana’s fate would most probably be decided by politics.

“There is every possibility that Tomana stands at the point of departure between two competing factions in Zanu PF and his fate might hang on which of those factions has the most power at this point in time.

“However, if he escapes this, it is unlikely he would ever lose his job again. But it would also be a slap on the Court’s face and a licence for impunity,” he said. Daily News