The Judicial Service Commission (JSC) says Johannes Tomana is not a “fit and proper person” to continue in the esteemed office of Prosecutor-General in the wake of defying court orders from the superior courts.
Tomana, who is facing criminal charges at the Harare Magistrates’ Courts’ involving Gushungo Dairy bombing, was in October last year slapped with a 30-day term of imprisonment for contempt of court after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Dr Munyaradzi Kereke and Telecel shareholder Dr Jane Mutasa.
Kereke was accused of raping an 11-year-old relative, while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars.
It emerged yesterday that the JSC has taken steps towards removing him from office, when it wrote to him about his unsuitability to continue holding the office of Prosecutor-General.
He was given 10 days to respond to the letter dated February 12 2016 signed by the JSC chairman Chief Justice Chidyausiku.
Attached to the letter were two judgments one from the Constitutional Court and the other from the High Court.
“ It is the view of the Judicial Service Commission that they both speak to your suitability to continue to hold the office of Prosecutor-General,” reads the letter. “ On the basis of these judgments, the JSC is of the view that a prima facie case exists for it to act in terms of Section 259(7), as read with Section 187, of the Constitution of Zimbabwe, subject to any submissions you may wish to make in this regard.”
He was given 10 days to respond, failure to which the JSC would proceed to determine the matter on the basis he had no submissions to make. On Tuesday Chief Justice Chidyausiku wrote again to Tomana explaining what he meant in his first letter.
Tomana yesterday responded to the matter by an urgent chamber application in the High Court seeking to stay the process in the interim, pending the finalisation of the matter. He argues that the process seeking to remove him from office was unlawful and was activated by the JSC.
In his application, Tomana cited the JSC and Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa as respondents.
“…I seek a declaratory order bearing on the invalidity of the process which has been commenced by the first respondent (JSC) purportedly in terms of section 187 of the Constitution of Zimbabwe,” said Tomana 11-page affidavit.
“Pending determination of this matter I seek in the interim a temporary interdict stopping the commencement of the process.”
Tomana argues that the Constitutional Court judgment which committed him to jail unless he issued certificates for private prosecution was issued from a court of no jurisdiction.
“The main order upon, which the first respondent seeks to proceed is, therefore, under challenge. I will shortly be filing my position to the matter of the challenge of the order,”he said.
Tomana is caught up in fierce Zanu PF succession war that has seen many heavyweights believed to be sympathetic to Team Lacoste of VP Mnangagwa being swept away by the vocal and forceful G40 faction supposedly led by first lady Grace Mugabe.