Court Watch 2015 - Prosecutor-General Accepts Defeat over Private Prosecutions


[10th November 2015]

Prosecutor-General Backs Down, Avoids Prison Term

by Finally Obeying Court Orders

On 28th October, in an unprecedented step, the Constitutional Court ordered that the Prosecutor-General, Mr Johannes Tomana, be committed to prison for 30 days.  The reason stated for this action was Mr Tomana’s disobedience, “in clear contravention of section 164(3) of the Constitution”, of court orders by the High Court and Supreme Court, one of which had been confirmed by the Constitutional Court itself.  [Section 164(3) states that a court order must be obeyed by the State and all persons and governmental institutions and agencies to which it applies.]

The court orders Mr Tomana had defied were orders requiring him to issue certificates nolle prosequi to allow private parties to prosecute in two high-profile cases in which he did not wish to pursue charges of, respectively, fraud and rape.  In both cases it was decided that Mr Tomana was under a statutory duty to issue the certificates to the would-be private prosecutors in terms of section 16 of the Criminal Procedure and Evidence Act.

The entire 30-day sentence was, however, conditionally suspended for ten days on condition that within the ten days the Prosecutor-General complies with both the earlier court orders he had so steadfastly refused to obey.  The suspension illustrates the fact that the court’s purpose was to get Mr Tomana to obey those orders.  [The full text of the Constitutional Court order is available from Veritas at the addresses given at the end of this bulletin.]

Prosecutor-General capitulates - certificates nolle prosequi issued

Speculation about what would happen should Mr Tomana defy the Constitutional Court has since been rendered academic.  On 4th November certificates nolle prosequi, issued by his deputy on behalf of Mr Tomana and on his instructions, were delivered to the lawyers for both would-be private prosecutors.  Which means that Mr Tomana, who had already left the country when the Constitutional Court sat on 28th October and not due to return until 10th November, will not find himself behind bars after all.

Can the private prosecutions now go ahead?

Yes, under the Criminal Procedure and Evidence Act, both private prosecutions can now go ahead, as can the prosecution in a third case in which a certificate nolle prosequi was also issued yesterday. 

But a complicating factor has arisen – the accused person in one of the cases [Dr Munyaradzi Kereke, ZANU-PF MP for Bikita West] has a constitutional application of his own pending in the Constitutional Court challenging the constitutionality of the Criminal Procedure and Evidence Act provision which is the foundation of the court orders compelling Mr Tomana to issue the certificates nolle prosequi.  That case will be heard on Wednesday 18th November.  And on 9th November Chief Justice Chidyausiku granted Dr Kereke’s urgent request to stop the private prosecution against him until the Constitutional Court has dealt with his constitutional application. 

How did this extraordinary situation develop?

The remainder of this bulletin consists of a summary of the events leading up to the dramatic Constitutional Court hearing on 28th October and the hearing itself.  We start with a note on private prosecutions and certificates nolle prosequi, and the two cases in which Mr Tomana disobeyed court orders.  

Private Prosecutions

Criminal prosecutions are primarily the responsibility of the State.  The Constitution makes the National Prosecuting Authority, headed by the Prosecutor-General, responsible for instituting and undertaking criminal prosecutions “on behalf of the State”.  Under the previous Constitution this responsibility was vested in the Attorney-General and his Office, which then included a Criminal Division headed by a Director of Public Prosecutions.  Mr Tomana was the Attorney-General from 2008 until August 2013 when the current Constitution came fully into force; he then became the first Prosecutor-General [Constitution, Sixth Schedule, paragraph 19].   

Our law of criminal procedure, however, has always provided space for prosecutions by private persons in cases in which the State does not wish to prosecute.  In such cases, private persons have had the right to institute a prosecution provided that they have a “substantial and peculiar interest in the issue of the trialand that the Prosecutor-General [until 2013, the Attorney-General] has issued a certificate nolle prosequi.  And, according to section 16(1) of the Criminal Procedure and Evidence Act, “in every case in which the Attorney-General declines to prosecute he shall, at the request of the party intending to prosecute, grant the certificate required.”  

The Cases Underlying the Constitutional Court’s Order

In both the cases that led to the Constitutional Court’s 28th October order against Mr Tomana, he, as Attorney-General, had decided not to prosecute on behalf of the State.  Nevertheless, Mr Tomana refused to issue certificates nolle prosequi, despite the peremptory wording [“shall”] of section 16(1) of the Criminal Procedure and Evidence Act.

Telecel Zimbabwe (Private) Limited

In this case Telecel alleged massive fraud committed against it by certain persons, who were initially arrested and remanded in custody, the State having opposed bail.  The charges were later withdrawn before plea following a directive from Mr Tomana, his rationale being that there was insufficient evidence to prosecute.  He refused Telecel’s application for a certificate nolle prosequiTelecel went to the High Court for an order compelling the issue of the certificate, but in October 2011 the High Court dismissed its application, ruling that a private company was not entitled to bring a private prosecution under the Criminal Procedure and Evidence Act. 

Telecel appealed and on 28th January 2014 the Supreme Court decided that a private company is entitled to bring a private prosecution and that, as Telecel satisfied the “substantial and peculiar interest” test, Mr Tomana was obliged to issue a certificate nolle prosequi.  The court gave him five days within which to do so.  [The judgment – Judgment No. S.C. 1/2014 – is available from the addresses given at the end of this bulletin]. 

Mr Tomana did not comply.  Instead he lodged a case with the Constitutional Court, arguing that compelling him to issue a certificate nolle prosequi infringed the independence conferred on him by section 260(1) of the Constitution.  On 8th October 2014 the Constitutional Court dismissed that case, saying its reasons for judgment would be given later.  Mr Tomana still did not comply with the order to issue a certificate nolle prosequi, saying he would not do so until he knew the reasons for the Constitutional Court’s dismissal of his case.  [Note: The judgment containing these reasons was eventually handed down on 29th October 2015 – the day after the court ordered Mr Tomana’s imprisonment.  Essentially, the court said Mr Tomana had not followed the correct procedure in lodging his case.  Judgment available from Veritas at the addresses given at the end of this bulletin.]   

Maramwidze case

In this case Mr Maramwidze, the guardian of a minor girl, wished [and still wishes] to bring a private prosecution against a man accused of raping the 11-year old minor.  The matter was reported to the police in late 2009 and, having seen the police docket, Mr Tomana [then Attorney-General] declined to prosecute.  But he refused to issue Mr Maramwidze with a certificate nolle prosequi, thereby thwarting the proposed private prosecution.  Mr Maramwidze approached the High Court.  On 3rd March 2014 the High Court ordered Mr Tomana to issue a certificate nolle prosequi.  Mr Tomana refused to do so, despite repeated requests from Mr Maramwidze’s lawyers. Eventually, on 20th January 2015, Mr Maramwidze filed an application in the High Court asking the court to fine or imprison Mr Tomana for contempt of court unless he issued the certificate promptly. 

Mr Tomana’s Moves to Outflank the Court Orders

Later in March 2015, with the contempt of court application hanging over him, Mr Tomana returned to the Constitutional Court with an ex parte application – i.e., an application citing no-one else as a respondent, defendant or opposing party.  He asked for an order confirming his assertion that any court order compelling him to issue certificates nolle prosequi was an infringement of the independence conferred on him by section 260 of the Constitution, which states that the “Prosecutor-General ... is independent and is not subject to the direction or control of anyone”.  In effect, without citing Telecel or Mr Maramwidze, he was asking the Constitutional Court to reverse the existing court orders in their favour. 

Mr Maramwidze’s lawyer, Mr Warara, and Zimbabwe Lawyers for Human Rights applied to the court for, and were granted, permission to take part in the case as amici curiae [friends of the court].  This ensured that there would be an opportunity for the court to hear legal arguments contesting Mr Tomana’s application.   

The filing of this new Constitutional Court case had an impact on Mr Maramwidze’s High Court application for contempt of court measures against Tomana.  When that case came before the High Court on 6th October, Justice Mtshiya, with the consent of both parties, postponed it pending the outcome of the now imminent Constitutional Court proceedings, set down for 28th October.

The Constitutional Court Hearing on 28th October

Mr Thabani Mpofu represented Mr Tomana, together with Mr Hashiti.   The amici curiae were Mr Mafukidze and Mr Hofisi, for ZLHR, and Mr Warara.

Mr Tomana’s request to have the matter postponed

Mr Mpofu began with a request that the hearing of the main constitutional application be postponed.  He based his argument on the fact that the Government’s Criminal Procedure and Evidence Amendment Bill, currently at an advanced stage in Parliament, includes provisions modifying section 16(1) of the Criminal Procedure and Evidence Act so as to give the Prosecutor-General a complete discretion whether or not to issue a certificate nolle prosequi and, in addition, revoking the right of companies to bring private prosecutions [in other words, provisions designed to overturn both aspects of the Supreme Court’s January 2014 decision].  It was, therefore, likely, he argued, that the matter before the Court would soon be resolved by the legislature, rendering any court ruling purely academic, and perhaps resulting in Mr Tomana’s withdrawal of his application.  It was pointed out from the Bench, however, that whatever the outcome of the Amendment Bill, its effect would be prospective and would not address the Prosecutor-General’s flagrant disregard for court orders already issued. 

Both amici curiae strongly opposed the application for postponement arguing that it was the latest attempt by Mr Tomana to abuse court processes to escape the consequences of his defiance of court orders.  Mr. Warara submitted that the Prosecutor-General was forum shopping, all the while neglecting to comply with court orders that had already been issued.  When it was suggested by Mr Mafukidze that Mr Tomana should be in court to explain personally why the orders had not been issued, Mr Mpofu said he was out of the country.

Without retiring, the Constitutional Court dismissed the request for postponement and said that its reasons for doing so would be handed down together with its judgment on Mr Tomana’s constitutional application, on which it immediately proceeded to hear argument.

Argument on the constitutional application

For Mr Tomana, Mr Mpofu tried to confine his arguments to the question of the Prosecutor-General’s independence and protection from the direction and control of anyone, in an endeavour to avoid dealing with the problem posed by Mr Tomana’s refusal to issue certificates nolle prosequi in the Maramwidze and Telecel matters.  The bench, however, insisted that he deal with this problem, pointing out that where there are doubts about the constitutionality of the law, the correct sequence of events is that the law must be obeyed first, then the constitutionality of the law can be challenged thereafter.  The case showed a pattern of disobeying court orders by a senior officer of the court.  Also raised was the issue of the procedure followed in coming direct to the Constitutional Court.

The amici curiae submitted that the court should dismiss Mr Tomana’s application without answering his question.  He was abusing the process of the court, and had not come to court with clean hands.  They insisted that the certificates nolle prosequi had to be issued.

The hearing ended with a unanimous court order that:

- dismissed the Prosecutor General’s constitutional application with costs on the legal practitioner and client scale in favour of both amici curiae [this order for costs marked the court’s extreme displeasure at Mr Tomana’s conduct]

- ordered Mr Tomana’s imprisonment unless he issued the two certificates nolle prosequi within ten days [as noted at the beginning of this bulletin]

- also ordered that if Mr Tomana failed to issue the certificates within ten days, he would in his personal capacity be barred from approaching or appearing as a legal practitioner in any court in Zimbabwe.

It is difficult to imagine a stronger condemnation of Mr Tomana’s handling of this matter.

Is Mr Tomana’s Claim to Unfettered Discretion Now History?

Mr Tomana’s claims have been kept alive for the time by Dr Kereke’s application to the Constitutional Court already mentioned above – the application challenging the constitutionality of section 16(1) of the Criminal Procedure and Evidence Act.  

Comment:  Dr Kereke may have an uphill battle.  The Supreme Court, in its January 2014 Telecel judgment [see above], while fully acknowledging the Prosecutor-General’s constitutional independence, concluded that section 16(1) of the Criminal Procedure and Evidence Act compelled the issue of a certificate nolle prosequi to a qualified applicant.  The court remarked—

“This conclusion clearly does not impinge on the [Prosecutor-General’s] principal discretion to prosecute or not to prosecute at the public instance.” 


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