Harare – Zimbabwe’s Constitutional Court on Wednesday slapped prosecutor-general Johannes Tomana with a 30-day prison term for defying high and supreme courts orders to issue certificates for the private prosecution of a Zanu-PF member of parliament, Munyaradzi Kerere, and Telecel Zimbabwe shareholder Jane Mutasa.
But the sentence was wholly suspended on the condition Tomana issues the certificates in the next 10 days.
In January this year, the Supreme Court ordered Tomana to issue the private prosecution certificate after Mutasa was accused by Telecel Zimbabwe of swindling the firm out of more than US$1,7 million in airtime top-up vouchers, an incident said to have occurred in 2010.
However, Tomana declined to prosecute Mutasa for lack of evidence.
Kereke, on the other hand, is facing a rape charge.
On Wednesday, the ConCourt unanimously dismissed with costs Tomana’s application where the State’s chief lawyer had based his arguments on Section 260 and 261 of the Zimbabwean Constitution which reads: “Subject to this Constitution, the Prosecutor-General is not subject to the direction or control of anyone; and must exercise his or her functions impartially and without fear, favour, prejudice or bias.”
The ConCourt read that it was apparent from the record of the proceedings that orders were issued by the High Court in Case number HC 10203/12 and the Supreme Court in Judgment No 1 of 2014, which was confirmed by the Constitutional Court in CCZ8/2014 [the Telecel and Kereke matters].
“In terms of Section 165(1)(c) of the Constitution, this court is obliged to uphold the rule of law and to make such orders as are necessary to achieve that purpose in accordance with its inherent jurisdiction. It is accordingly ordered that (i) The applicant [Tomana] is committed to imprisonment for a period of 30 days, the whole of which is suspended on condition that the applicant complies with the above orders of the High Court and the Supreme Court by issuing the certificates nolle prosequi (formal notice of abandonment) within 10 days of this order,” the ConCourt ruled.
“In the event that the applicant fails to comply with this order, the applicant shall be barred from approaching or appearing as a legal practitioner in any court in Zimbabwe.”
African News Agency
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