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Is Tomana still “Fit and Proper” to be Zimbabwe’s Prosecutor-General?

THE Constitution of Zimbabwe requires that for one to hold the office of Prosecutor-General (PG), the country’s chief prosecutor, he or she “must be a fit and proper person”. It’s a high standard, equivalent to that required of a judge of the Supreme Court. The most pressing question of the day, in the aftermath of an unprecedented order of the Constitutional Court, is whether the current PG, Mr Johannes Tomana, is still a fit and proper person to continue in that office.
The Constitutional Court, the highest court in the land, yesterday issued an order committing the PG to 30 days’ imprisonment for contempt of court. However, the sentence is wholly suspended on condition that the PG complies within 10 days, with the court orders that he has, so far, wilfully disobeyed. Witnesses to the Court’s deliberations say the judges were not amused by the conduct of the PG in these matters.
This order has generated a great deal of excitement among members of the public, with questions being raised over its implications on the PG’s position. Here is a man whose constitutional mandate is to carry out prosecutions on behalf of the state, but now he himself has been found to have violated the highest law in the land, and to be in contempt of court. He could not be in a more invidious position. This article looks into those questions.
In addition, while a great deal of attention has been on the issue of contempt, the case actually involves a major point of constitutional significance, in regard to the constitutionality of private prosecutions, which the PG was challenging.
What exactly happened?
The PG refused to prosecute alleged offenders in two different cases, one involving the alleged rape of a minor, to the dissatisfaction of the aggrieved parties. Zimbabwean criminal law allows aggrieved parties in such circumstances to conduct private prosecutions but they must get a certificate to that effect, called a certificate nolle prosecui, under the Criminal Procedure and Evidence Act. It simply means the PG has decided not to prosecute, which opens the way for a private party to carry out his or her own prosecution if he or she so wishes. This legislation requires the PG to issue this certificate to enable a private party to prosecute privately.Advertisement

One of these cases in question involved Dr Munyaradzi Kereke, a Zanu PF legislator accused of raping an 11 year old minor in 2009. Efforts to get Kereke prosecuted have been frustrated by the prosecution authorities. The minor’s guardian sought permission to prosecute privately but the PG refused. The other case involved Telecel, a communications company. When the PG refused, the aggrieved parties approached the High Court to order the PG to issue the certificates of private prosecution.
The High Court ordered the PG to issue the certificates in terms of the law. These orders were subsequently confirmed by the Supreme Court and the Constitutional Court in 2014. The PG did not comply with these orders. Instead, he launched a constitutional application in the Constitutional Court, challenging the validity of the law which allows private prosecutions.
In essence, his main argument was that private prosecutions interfered with and undermined his authority and independence which is protected by the Constitution. It was on this basis that he wanted the requirement to issue certificates for private prosecutions to be declared unconstitutional. If successful, this would free him from the court orders in the Kereke and Telecel matters.
Order of the Constitutional Court
The matter was argued before the Constitutional Court on 28th October 2015. The Court dismissed the PG’s constitutional application with costs on a higher scale, a punitive measure representing the Curt’s displeasure with the application which it would have considered vacuous, unmeritorious and a waste of time.
The Court also held that the PG had disobeyed the court orders in the Kereke and Telecel matters, which conduct it found to be a violation of s. 164(3) of the Constitution and to be contemptuous. S. 164(3) states as follows:
“An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them”.
The Court used its discretion under s. 165(1)(c) of the Constitution, in reference to its obligation to uphold the rule of law and ordered a 30 day imprisonment, suspended on condition that the PG complies with the court orders within 10 days. If he should fail to comply, he not only goes to jail for 30 days, but he would also be barred from appearing in any court of law in the country.
What does this mean?
Right to prosecute privately
First, the dismissal of the PG’s constitutional application is a victory for those who defend the right to private prosecutions. While the independence of the PG’s powers is to be respected, the law has always provided a fall-back provision for private parties who feel aggrieved by the decision of the prosecuting authorities not to prosecute.
The rationale is that private parties must have the right, if they so wish, to prosecute privately in order to safeguard their fundamental rights and freedoms. This recognises every person’s right to have their day in court, even where the State is unwilling to take action. There are cases, where there might be abuse of prosecution powers, where parties may wish to act on their own to protect their rights. Such rights must be respected and the Court’s decision is therefore a victory for those who defend them.
Second, this order means the PG now has absolutely no choice but to comply with the High Court orders and issue the certificates to allow the aggrieved parties to conduct private prosecutions in the Kereke and Telecel matters. The PG’s refusal to prosecute Kereke, in particular, has been a very controversial decision. Now the minor’s guardian can commence the private prosecution proceedings and have their day in court, bringing finality to a long-running case.
Fit and Proper Person?
Nevertheless, the matter also raises broader questions regarding Tomana’s suitability to continue occupying the PG’s office. 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? As the PG, Tomana has a constitutional duty under s. 261, to uphold the constitution and the law of the land. The Constitutional Court has found him to be in breach of the Constitution and to be in contempt of court, both of which constitute a contravention of the PG’s duty under s. 261 of the Constitution.
Further, in grounding its decision on the basis of its role under s. 165(1)(c), in regard to “safeguarding … the rule of law”, the Court was making the statement that the PG’s conduct had violated and undermined the rule of law. Therefore, a question arises whether a person who wilfully undermines the rule of law is a fit and proper person to hold such a high office.
It is arguable, on these grounds, that the PG falls short of the standards required of a person occupying that office. Can the public have confidence in a person who is prepared to and has been found by the highest court in the land to be in violation of the Constitution and the rule of law? Does he still have 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?
It is hard to find an answer to these questions in the affirmative. 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?
Contempt of Court
A question that has been raised since the order was pronounced is whether the PG is now effectively a criminal convict and whether a person with a criminal conviction is eligible to hold that office. The law of contempt of court is a little murky and controversial. Nevertheless, two distinctions are to be made between criminal contempt and civil contempt. Courts do have a wide discretion and confusion often arises as to whether contempt is criminal or civil, as has happened in this matter. Not that it makes a great deal of difference for Tomana, but it’s important to clarify these things.
Civil contempt often occurs where a party refuses to comply with a court order and it is designed to compel a party into compliance and to enforce the rights of an aggrieved party. The aim is to correct the violation of a party’s rights. Criminal contempt on the other hand is often where the conduct of a person impairs and injures the dignity and integrity of the court. It is an offence against society, unlike civil contempt which is an offence against an individual’s rights. Civil contempt is a device to compel the non-compliant person to comply with a court order while criminal contempt is usually of a punitive nature.
Another difference is that the requirements of due process, including the right to be heard must be satisfied in criminal contempt while these are often dispensed with in cases of civil contempt. This is sometimes criticised as a violation of constitutional rights but the counter-point is that in civil contempt the party has the key to his own liberty as he can avoid jail by simply complying with the court order. Another difference is that the standard of proof in criminal contempt is often higher as guilt must be proven beyond a reasonable doubt while in civil contempt the standard is lower.
Analysing the order of the Constitutional Court in this matter and on the basis of the above distinction, it seems to me that this is more a case of civil contempt rather than criminal contempt. As such he may not be regarded as a convict in the criminal sense. The suspended jail term is clearly designed to enforce compliance. He has been given a chance to make good his violation of the law but simply obeying the court orders.
This does not mean he cannot be prosecuted for criminal contempt of court, should that become necessary. That can be done, yet the only problem would be that this would be difficult while he is the head of the prosecution authority. It would have to be another private prosecution, on the basis that his contempt impairs the dignity of the court and therefore is harmful to society. Any member of the public could do this.
Does the fact that it is civil, not criminal contempt make it any better?
Not at all. In this case, the difference is immaterial. This is the country’s chief prosecutor who has not only been found to be in contempt of court, but has also violated the Constitution and the rule of law. This conduct places his credibility and integrity into question.
What will happen now?
Tomana has no choice but to comply with the court orders. He risks jail time and loss of his right of audience in Zimbabwean courts. Without these rights he would not be able to exercise the functions of his office. In any event, he would fall short of the requirements under s. 259(4) to qualify as a PG.
Resignation
Nevertheless, even if he does comply, would he still be fit and proper to carry on in his role? One option, which is highly unlikely, is to resign under the weight of violation of the Constitution and the law. There is hardly any culture of resignation among public officers in Zimbabwe, even for misconduct as gross and glaring as this. I would be surprised if he does throw in the towel willingly.
The last time Tomana’s conduct drew outrage, over his comments regarding the age of consent, he claimed political victimisation and that he had been misquoted. These defences would not make sense in this case, but he might still hang on banking on political protection. Public officers in Zimbabwe rarely resign, even for the worst excesses, and I don’t expect Tomana to break the trend.
Removal from office
The second option for the President to activate the procedure for removing the PG, as provided for under s. 259(7) of the Constitution which 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 and procedure for the removal of judges, which are also applicable to the PG, are provided for in s. 187 of the Constitution. These grounds are that a PG can be removed for:
(a) inability to perform the functions of his or her office, due to mental or physical incapacity;
(b) gross incompetence; or
(c) gross misconduct.
Of these three grounds, the last two, “gross incompetence” and “gross misconduct” would seem to be the most relevant in the present circumstances. It is arguable that the conduct of the PG in these matters, involving violations of the Constitution and contempt of court, as held by the highest court in the land, constitute either gross misconduct or gross incompetence, or both and at the very least, warrant an investigation.
The President has the power to set up an independent tribunal to investigate the allegations and the President is required to act in accordance with the tribunal’s recommendations. It is important to note in this regard that the constitutional standard for a PG, as with a judge, is whether he is a “fit and proper person” to hold such an office.
The Politics
At the end of the day, as with most matters in Zimbabwe, Tomana’s fate will most probably be decided by the politics. The last time he was in the firing line over his controversial remarks about the age of consent, Tomana blamed his political opponents for his troubles. He faced scathing criticism from the First Lady, Grace Mugabe but soon after, he received the important backing of Vice President Emmerson Mnangagwa, who is also superintends the Justice Ministry.
It is understood that the Justice Ministry has been pushing through amendments to the criminal legislation to ban private prosecutions, supporting the argument Tomana was making in court. I understand an attempt to get the constitutional matter postponed to allow for these amendments to go through was dismissed. Clearly Tomana has some important political backing.
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.
This article was first published on www.alexmagaisa.com Follow on Twitter @wamagaisa. Contact Alex at  wamagaisa@yahoo.co.uk