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.
In terms of the Constitution, for one to hold the office of Prosecutor-General, he/she "must be a fit and proper person".
However, Tomana yesterday filed an urgent chamber application seeking an interim order staying the process for his possible removal from office.
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.
Tomana was fined by a nine-member judges' panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.
The sentence was, however, wholly set-aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, within 10 days, failure which he would be barred from practising as a lawyer in Zimbabwe.
The following month, Tomana was again at the centre of another storm for allegedly abusing the court process to rubber-stamp the acquittal of former Zupco board chairman, Professor Charles Nherera, who was charged with corruption.
The abuse reportedly occurred at the time when Tomana was the Attorney General. Prof Nherera was acquitted by the High Court in November 2009, barely a year after Tomana was appointed to the post of then AG.
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.
He explained that the Constitutional Court had found as a fact that he disobeyed orders of the court. " This was common cause and, in my view, no detailed reasons are required in this regard," said Chief Justice Chidyausiku. " I, however, attach to this letter two judgments whose orders you failed to obey. The Constitution Court considered your failure to obey these court orders constituted a violation of Section 165 (1) of the Constitution of Zimbabwe and imposed on you what it considered appropriate punishment for such transgression.
" The fact that the Constitutional Court found as a fact that your disobedience of the court orders merited the punishment it imposes triggered, together with the other allegation, the mechanism for the Judicial Service Commission to consider whether or not it should exercise the power conferred on it in terms of Section 159(7) as read with section 187, of the Constitution."
The Chief Justice said in determining Tomana's case, the JSC will look into whether or not he disobeyed court orders. If he did disobey court orders, what are the legal consequences that flow from his conduct?
In particular, whether or not Tomana's disobedience of court orders constitutes contempt of court which, as he knew, was a criminal offence. The JSC, furthermore, would consider that by disobeying court orders did Tomana violate section 164(3) of the Constitution, as the Constitutional Court found. If it found that Tomana violated the section alluded to, does that constitute a violation of his oath of office to uphold the Constitution.
"It is hoped that your submissions on the above will assist the Judicial Service Commission in determining what advice, if any, it should give to the President in terms of section187 of the Constitution," said Chief Justice Chidyausiku.
"It is not for the Judicial Service Commission to delve into details of the allegations or determine whether such conduct constitutes a violation of section187 (1)(a), (b) and (c) of the Constitution. That is the function of the Tribunal, if one should be appointed. I am making the above observation in the hope that it helps in understanding the process of the JSC." 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 orders I was held to have been in contempt of are orders of the High and Supreme Courts respectively," said Tomana. "Compliance with those orders is enforced by the High Court. In fact as at the date of the order of the Constitutional Court, proceedings for contempt had been instituted in the High Court. The constitutional Court has no jurisdiction to relate to a matter which was within the purview of the High Court."
He also contends that the order was also invalid in that the Constitution dealt with a matter which was not before it. The Constitutional Court, he added, cannot at law deal with a contempt of court matter. He said the matter that was before the apex court was an ex-parte application he had made which sought the declaration on the question of his independence.
He also argues the proceedings that gave rise to Constitutional Court order were a nullity given that the Deputy Chief Justice Luke Malaba was not part of the bench when the order was granted. "Constitutionally, the Constitutional Court cannot be properly constituted within the first seven years of its life if it does not consist of the Chief Justice and the Deputy Chief Justice who must sit together in hearing any and every matter," he argues. " An order by an improperly constituted court is obviously a nullity."
Tomana also argues that a citizen, Rooney Kanyama, has challenged the validity of the Constitutional Court order committing him to jail. He attached Kanyama's application that was filed in the Constitutional Court yesterday.
"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."