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Judge slams acting prosecutor-general

By Tendai Kamhungira

High Court judge Tawanda Chitapi has slammed acting Prosecutor-General (PG) Ray Goba, describing his attempts to have him recused from handling his predecessor Johannes Tomana’s criminal case as unbecoming, unprofessional and unethical.

Suspended Prosecutor-General Johannes Tomana arrives at Harare Club Chambers yesterday for his disciplinary hearing before a three-member tribunal (Picture by Shelton Muchena)
Suspended Prosecutor-General Johannes Tomana arrives at Harare Club Chambers for his disciplinary hearing before a three-member tribunal (Picture by Shelton Muchena)

This comes after Goba early this year wrote to Judge President George Chiweshe, requesting that Chitapi recuse himself from Tomana’s case.

Tomana, who has been sacked from his post as the PG, is facing charges of criminal abuse of office.

According to the letter referred to in court, Goba claims that Chitapi cannot handle Tomana’s case because he was once a board member of the National Prosecuting Authority.

He also accuses the judge of keeping referring to Tomana as the prosecutor-general, claiming he is the legitimate bearer of that office.

Chitapi subsequently summoned Goba to court to explain his conduct of citing the judge as a litigant in the application for recusal, but he failed to come.

In his judgment yesterday, Chitapi said the State failed to justify its reasons for demanding his recusal.

“I reach the conclusion that the machinations of the acting prosecutor-general in writing a letter that the judge president interferes with the independence of the presiding judge, of refusing to appear before the court to explain his conduct, of citing the judge as a litigant to the application for recusal and of deposing to an affidavit and alluding to matters which did not happen in court and distorting facts were unbecoming, unethical and unprofessional.

“One will be forgiven for holding that the conduct was self-serving as opposed to pursuing the interest of justice. It was for the above observation that I prefaced my judgment by describing the conduct of the acting prosecutor- general as creating a storm in a tea cup and as an example of much ado about nothing,” Chitapi ruled.

The judge went on to dismiss the application.

“After a careful consideration of the application and submissions by counsel for both the prosecution and the accused person, I rule that the State has failed to discharge the onus to establish cognisable grounds for the judge’s recusal and the application is dismissed,” he ruled.

He, however, said since he had not yet started hearing the case against Tomana, any judge could be assigned to hear the matter.

“It remains in the court in which it was set down that is Court A and once reset, any judge presiding in that court can deal with it,” he said.

Emmanuel Mukweva appeared on behalf of Tomana, while Edmore Nyazamba represented the State.

According to court papers, charges against Tomana emanate from the time when former Information deputy minister and MP Bright Matonga was still Zupco’s chief executive officer.

The court heard that in 2004, Matonga was charged with culpable homicide arising from a traffic accident which resulted in the death of Chipo Chikowore. When Tomana became the country’s attorney-general, he reportedly ordered his subordinates to drop the criminal charge against Matonga, without having sight of the docket and knowledge of circumstances surrounding the case.

He is further accused of protecting Charles Nherera, another former Zupco board member, who was also facing charges of contravening the Prevention of Corruption Act.

According to State papers, Tomana also facilitated the illegal release of Beauty Basile, an acting medical superintendent who was based at Bindura General Hospital in 2009.

Basile had been arraigned before the court accused of criminally abusing her duties and also faced 219 counts of corruption.

Tomana is also accused of assisting the release of Patrick Mavros, an illegal gold dealer, who was found in possession of 9kg of the precious mineral.

He was accused of contravening the Gold Trade Act, by operating without a licence.  Daily News