ARREST OF PROSECUTOR GENERAL AN ASSAULT ON THE RULE OF LAW AND THE JUSTICE DELIVERY SYSTEM
Zimbabwe Lawyers for Human Rights (ZLHR) is disturbed by the arrest and detention of the Prosecutor General, Johannes Tomana, on 1 February 2016 and his appearance in court the following afternoon on charges of criminal abuse of office or alternatively obstructing the course of justice.
The independence of the prosecutorial authority in Zimbabwe is constitutionally protected. Further safeguards exist under regional and international law. These provisions empower prosecutors to exercise their functions impartially and without fear or favour. As the head of the National Prosecuting Authority (NPA), the Prosecutor General is entitled to such protection.
Where such powers have been exceeded in the past, the Prosecutor General has been called to order by the courts through civil – and not criminal – litigation. Some examples include the misuse of section 121 of the Criminal Procedure and Evidence Act (CPEA) and his refusal to issue certificates nolle prosecui to allow private prosecutions. The important point to note is that, in those and other cases, Mr. Tomana’s powers were successfully challenged through competent courts of law.
This is how state and non-state actors behave in a constitutional democracy that respects the rule of law. Arresting and detaining the head of an independent prosecutorial authority purportedly due to disagreements on how he has decided to prosecute a matter is not correct; neither is it in any way acceptable.
Such behaviour is a direct assault on the Office of the Prosecutor General and the independence of the NPA as an institution. It is an attack on the justice delivery system and the Constitution. It has the additional chilling effect on members of the legal profession of forcing them to act arbitrarily out of fear of the consequences of their actions and decisions, rather than encouraging professionalism, respect for the law, and compliance with their mandate as officers of the court to all people, equally.
It is for this reason that ZLHR has successfully defended numerous public and private sector lawyers charged with obstruction of justice when they were simply carrying out their professional mandate. It is also why we have challenged and continue to call for the constitutional review of the provision of criminal abuse of office. It is arbitrary. It continues to be abused. We are encouraged to note that our efforts to ensure the removal of section 121 of the CPEA have now protected a fellow legal officer from being further persecuted.
This assault on a constitutional office is unacceptable. Such action must be swiftly and aggressively punished in order to ensure that it is not and can never be used to control any person holding the office of the Prosecutor General or their subordinates, and to encourage professional and public confidence in Zimbabwe’s justice delivery system and the proper administration of justice.-ZLHR