IN terms of the new Constitution of Zimbabwe, the National Prosecuting Authority is now a stand-alone office dealing with the prosecution of criminal matters while the Attorney General's Office focuses on legal advisory and civil representation services to Government. Our Senior Senior Reporter Daniel Nemukuyu caught up with the newly appointed Prosecutor General Mr Johannes Tomana, who talks of the splitting of the offices, his role in the new office, allegations of losing court cases, "selective" prosecution, among other issues.
Mr Tomana, can you outline your duties as the Prosecutor General of Zimbabwe?
Section 259 of the Constitution clearly states the responsibilities of the National Prosecution Authority. It is to conduct all prosecutions for and on behalf of the State. In short, the mandate is to be the main law enforcement agency of the State.
Are the duties different from the ones you had as the Attorney General?
Certainly they are different only to the extent that I am now focusing on law enforcement instead of combining both law enforcement and advisory services. My former position of AG entailed both advisory and law enforcement.
The current position of the PG focuses only on law enforcement. What I mean is, in the former position, Government's legal advisory services, representation in civil matters and legal drafting were part of the AG's mandate who was over and above the Prosecuting Authority.
So those three have been hived off (legal drafting, civil representation and advisory services) as they remain with the AG and I have moved with the prosecutorial functions.
What advantages are there in separating the offices?
Those who set down to separate the offices are the best to respond to that question. All I am doing is to oblige and obey the Constitution. I can only comment on the differences and not necessarily advantages.
The fact that we have hived off the other duties from the prosecution, it means that we have scaled up, as a nation, the effectiveness of our law enforcement. It makes me focus entirely on giving effect to the law. You may say that was an advantage because when the law is being observed, the experience is that people will enjoy the benefits of the legal protection. Confidence in the protection of the law is kept at the highest level and I think that is good for a country.
How has been the office so far?
We are still setting it up. It is a new animal and for it to be given effect, we need an Act. I know that Government is actually working on the National Prosecuting Authority Act, which will create the necessary legal framework within which we could give effect to the intention of the Constitution. You notice that the reason why the National Prosecuting Authority was created was to give independence to law enforcement both professional and administrative independence.
This means we need to come up with a board, but we cannot have the board without an Act. We are actually in the formative stages.
The prosecution has over the years been accused of selective prosecution along political lines, what is your comment on that?
We simply find out whether or not you have committed an offence. If we are satisfied that you committed an offence, we prosecute you.
When we find no offence, we decline to prosecute. There is no evidence to sustain the claims of selective prosecution.
No one has brought the evidence to me and we operate independently without fear or favour. In all cases that we actually took up over the years, you will agree with me that there were complainants, witnesses and allegations of violations of the law. If all those elements are in place, we have an obligation to take the matters to court. In most cases some people were convicted, proving that the decision to prosecute was reasonable. I will dismiss the accusations as a, purely political and hateful statement from whoever has actually levelled that kind of accusation against the office, quite malicious and without basis. Whenever we decline to prosecute, we give reasons and we are obliged to do so. If I decide to prosecute someone, you have to know why we have prosecuted him or her because the cases are heard publicly in court.
Each time we prosecute MDC people, some people who are in love with the party do not care to find out whether the suspects committed the offence or not but they simply raise frivolous allegations.
For example, Komichi (Morgan) committed a very serious offence that could have turned the country upside down but people are happy that he was sentence to community service.
Instead of giving us credit for protecting the citizens, people are busy attacking us. Zimbabwe is the only country where one can sleep outside and wake up the following morning without any harm. The order that you see in this country is not accidental, some people are behind that. If you look at the stability that we have compared with other countries, we are next to none.
Under what circumstances can you direct the police to investigate a case?
If anybody justifiably thinks that there is a case that must be accounted for and they have got the necessary evidence, you formally write to us showing us all the proof. According to the Constitution, I may direct the Police Commissioner General to conduct investigations. The complainants must satisfy me that they have a case and that they have exhausted all the avenues in the police system.
I can only make the directive after being satisfied that the complainant has made a report to the police, and no action was taken, the matter was taken to the DOSPOL (district commander) and nothing was done. The complainant must also prove that he or she took the case up to the PROPOL (Provincial commander) and to the Commissioner General without any joy.
Then you may escalate the matter to me.
Does that not affect the independence of the police force?
The police have the mandate to investigate cases without interference from anyone else but I am allowed to direct them where it is warranted. That is done in terms of the Constitution and that provision must not have to be abused.
What challenges are you facing as the National Prosecuting Authority?
If you want any institution to be effective, it must be adequately supported in terms of the requisite capacities like infrastructure, funding and human resources capacity. It is a new institution and it requires money. If it gets that kind of support, it means it will be able to set up properly, to employ the necessary qualified persons and retain them and therefore be able to be effective in discharging its mandate. I am therefore not able to say that the Govt has failed or succeeded in this or that way because it is too early.
The prosecution has been attacked left right and centre for losing court cases, what is your comment?
If it is correct that we are part of the chain of law enforcement in the country, then it is extremely ignorant of anyone to suggest that the State loses or wins cases. It is fallacious for anybody to think that prosecution wins or loses cases because we simply assist in the administration of justice. If a guilty person is convicted, that is justice and again if an innocent person is acquitted, again that is justice.
But if an innocent person is convicted, then that is injustice. Again, if a guilty person is acquitted that is injustice.
If you hear people saying the State loses cases, you can classify those people as deliberately malicious and ignorant.