Tomana case causes turmoil in PG’s office

By Tendai Kamhungira

Acting Prosecutor-General (PG) Ray Goba has caused “confusion and uncertainty” in the criminal prosecution of suspended Prosecutor-General Johannes Tomana, explosive communication between the acting PG and the prosecutor handling the case has revealed.

In letters seen by the Daily News yesterday, Goba speaks with a “forked tongue” and Tomana’s criminal abuse of office case has been bogged down in “subterfuge”, said Jonathan Chigwinyiso, the Provincial Public Prosecutor for Manicaland Province who had been assigned the case.

Chigwinyiso was furious after Goba told the State-run the Herald on October 6 that no decision had been made on where Tomana — whose pre-trial hearings were being handled by magistrates — would be tried.

Goba told the newspaper “no decision has been made on where Tomana will be tried”, effectively throwing Chigwinyiso under the bus after he had told a magistrate and Tomana’s defence on Tuesday, October 4, that the trial was being referred to the High Court.

But official correspondence seen by The Daily News shows that on September 12 this year, Goba wrote to Chigwinyiso stating: “I have formed the opinion that the accused be tried before a judge of the High Court…”

Goba cited three reasons for his decision, among them that “by virtue of Tomana’s position, it is proper that he be tried by a judicial officer of comparable status”.

Goba added that the trial required a judge who has a “prosecution background” as he or she would be “best placed to understand the nature of the duties and powers vested in the Prosecutor-General and to determine the criminality or otherwise of his conduct”.

A furious Chigwinyiso wrote to Goba telling him that his comments in the Herald, and what the former had said in court “are at variance to such an extent that it appears I am the one who came up with the idea that  . . . Tomana should be tried at the High Court.”

Chigwinyiso said this was “quite disturbing” given Goba’s memo of September 12, adding: “The history of Tomana’s so called trial is taking uncertain detours… This is a sensitive matter in which one of the complainants is not an ordinary person (the First Family which owns Gushungo Dairy).

“With due respect, it would not augur well with me to be part and parcel of a legal process that appears to be subterfuge and done with a forked tongue.”

He no longer felt comfortable to deal with the matter as the instructions from Goba “appear not to be consistent”.

“With due respect, if you had made a decision per your memo to me, I personally see no reason not to own up to it in the press. I hereby withdraw myself from taking any further part in this matter…I do not wish to add further confusion and uncertainty in the matter.”

Goba, appointed as a stand-in for Tomana, has been caught in the eye of a storm after it was revealed that he is a prohibited immigrant in Namibia after he was convicted of “defeating or obstructing the course of justice” in relation to a drink driving offence. Goba was the Deputy Prosecutor-General in Namibia at the time.

The decision by Vice President Emmerson Mnangagwa, who oversees the Justice ministry, to appoint Goba has been questioned by legal experts who say the Acting Prosecutor-General does not pass the “fit and proper person” test.

Tomana is on trial on six counts of criminal abuse of office relating to decisions to withdraw charges or not to prosecute he took between 2004 and 2016 —  first as Deputy Attorney-General, Attorney-General and later as Prosecutor-General.

Tomana withdrew charges of treason against two suspects accused of attempting to carry out a bomb attack on a dairy plant owned by President Mugabe and his wife, Grace, in Mazowe.

In 2004, Tomana withdrew culpable homicide charges against Bright Matonga, then CEO of Zupco. Matonga had been arrested and charged with causing the death of Chipo Chikowore in a road traffic accident.

In 2006, Matonga was again charged, this time with corruption. Tomana, say prosecutors, ordered the State to withdraw charges after plea — meaning Matonga could not be re-tried on the same allegations.

Also in 2006, Zupco board chair Charles Nherera was charged with corruption. Tomana testified in his defence but Nherera was jailed for three years. Nherera was released from prison in 2008, and Tomana — now the Attorney-General — declared that he had been wrongly convicted and was innocent.

In October 2009, Patrick Mavros, a gold dealer, was charged with possession of gold without a licence. Mavros admitted to the charges but Tomana directed prosecutors to drop charges, it is alleged.

Beauty Basile, the then Bindura Hospital acting medical superintendent, faced criminal abuse of duty allegations, but Tomana allegedly ordered prosecutors to drop the charges after plea in November 2009.

Tomana’s defence is that he enjoys constitutional rights which give him the sole prerogative to prosecute or dismiss charges. Daily News