Zanu PF compromised Zimbabwe AG Johannes TomanaWhenever there is talk about the State detaining or refusing to abide by judicial orders against it Zimbabweans can now safely replace “the State” with Robert Mugabe, Patrick Chinamasa, Johannes Tomana and Augustine Chihuri or their official capacities namely the President, Minister of Justice, Attorney General and Police Commissioner General.
So instead of stating “In the matter of the State vs. Ghandi Mudzingwa, Christopher Dhlamini and Shadreck Manyere” the accurate description of the matter for proper citation should be “In the matter The President, Minister of Justice, Attorney General and Police Commissioner General (PCG)[State] vs. Ghandi Mudzingwa, Christopher Dhlamini and Shadreck Manyere.”
The later citation identifies the parties with the precision that is lacking in the first because the word State used in general carries different and varied meanings that include the Nation of Zimbabwe in relation to its geographic boundaries and nationals therein or the Government of Zimbabwe including all its pillars of power namely the Executive, Judiciary and Legislature as well as quasi governmental institutions such as Local Authorities, Parastatals and Commissions that exercise government power in specialised areas on behalf of the representative capacity of Government.
This ambiguity inherent in the former citation has caused other democracies to cite criminal litigation cases qualitatively as “The State prosecution Services vs. The Accused in their individual names or collectively.
The bungling in the case in which Jestina Mukoko and 15 others (collective citation) have been abducted and detained incommunicado for between 3 and 4 months before being brought to Court against a maximum stipulation that anyone arrested by the State must be brought to Court within 48 hours of the arrest has served to clarify the matter for the ordinary Zimbabweans.
It is not in dispute that the accused were abducted, detained and tortured by the State’s Central Intelligence Operatives (CIO) and by extension the State.
When however they appeared before the Court for remand hearings the State’s Police Officer’s (read Police Commissioner General Augustine Chihuri) swore before the Court that he had only took the accused into custody the previous day and thus had not breached the right of the accused to be brought to Court within 48 hours of their arrest.
The Court amazingly believed him and remanded the accused in custody without inquiring into the whereabouts of the accused for the past 3-4 months despite defence allegations with proof the accused were in State custody and thus were improperly before the Court for remand.
The implication of the Remand Court’s decision is that CIO’s are not the State in criminal Prosecutions and thus whatever time they unlawfully deprive a citizen of his/her freedom has no bearing in Court proceedings thereafter initiated by the Zimbabwe Republic Police (ZRP) who are, in criminal prosecution the only recognised law enforcement agency with powers to detain anyone on behalf of the State.
That is a most absurd reality Attorney General Johannes Tomana has not bothered to explain before rushing to exonerate himself of any wrong in the current debacle involving the same accused persons.
The outrageous court decision to order the detention of the accused as if they had just been arrested triggered numerous Court Applications in the Magistrates, high and Supreme Courts of Zimbabwe.
Then it was generally held that the Junta regime fronted by an unelected Robert Mugabe was the State acting in common purpose against people it believed were in the process of preparing to commit acts of terrorism ,banditry and insurgency against a “LEGITIMATE GOVERNMENT” despite that there was no defacto elected government at the time they were arrested.
After conception of the coalition government, there was intense haggling in the Executive wing of the government between the Presidency and the Premiership over the detainees fate wherein the President maintained that due process of the law must take its course for the detainees to regain their freedom while the Premiership argued that incarcerations in custody were not legal due process but political persecution of the accused because of the nature of allegations against them.
The argument was that not only were the charges against the spirit of coalition governance given that they were raised by a defunct administration but they were retributive because the government they intended to topple was no longer of illegal toppling as it was defunct but its residual elements in the coalition were after revenge which revenge agenda lacked consensus in the new order.
In any event it was argued that due process of the law could not only be satisfied if the accused were incarcerated for long periods pending trial as the same process could be satisfied if the accused were admitted to bail pending trial which eventually prevailed but not without reluctance from State Prosecution Services who seemed to be under directives to oppose bail applications of the accused from the Presidency and the PCG.
Having been admitted to bail and strictly abided by the conditions attendant to admission the accused were brought to court and indicted to trial on 4 June 2009 i.e. a month after indictment.
Prosecution services who were forced to drop spurious section 121 of the Criminal Procedures and Evidence Act (CPEA) objections to admission to bail of the accused by Executive political interventions of the Presidency and Premiership through the Joint Monitoring and Implementation Committee (JOMIC) of the ruling coalition, sought to use the opportunity presented by the indictment process to re-detain the accused to please the presidency which grudgingly consented to the initial admissions to bail.
Timely reminders to the presiding Magistrate Catherine Chimhanda and the State Prosecution Services that the bail conditions extended to the accused were not independent Court rulings per se but rather politically directed compliances by the Court that should extend into the indictment period before trial were opposed by the overzealous Prosecution Services on instructions from the Minister of Justice and The Attorney General who is the coalition government’s principal law officer.
Despite the opposition to bail extension being legal correct and impossible of legally turning down the net effect of re-detaining the activists now by the coalition government was so outrageous as it implied the MDC to which most of the detainees belong was infact endorsing that the accused had indeed attempted to overthrow the Mugabe led Junta using military means and such an admission would have been self incriminating for the MDC.
Naturally the MDC Party with an impeccable record of peaceful political indulgence vehemently protested and condemned the latest re-detentions and went on to pressure the coalition government Presidency to abide by initially agreed bail conditions for the accused or face the collapse of the coalition government.
The MDC pressure was ratcheted up by regional, continental and international condemnation of the detentions of the activists in Prisons recently exposed by a South African Television documentary and Deputy Minister of Agriculture Roy Bennett as hell holes of hunger, disease and starvation.
The activists only spent a night in detention and were released the following day following “negotiations” between the AG and Defence Attorneys for the accused that convinced Tomana to accept re-admission to bail conditions that applied to the accused activists prior to indictment procedures the previous day.
Poor Magistrate Catherine Chimhanda without any judicial independence on the matter whatsoever was humiliated when she was compelled to reschedule cases to accommodate the urgent re-hearing of the activists’ case which she had correctly said was beyond legal competence to challenge her detention order.
After less than a five minute appearance she legally and competently reversed and quashed her previous ruling and admitted the activists’ to their previous bail conditions and 2 hours later they were all released from the notorious Chikurubi Prison where the 73 year old Fidelis Chiramba alleged he was short supplied blankets and water.
Under siege and Zanu PF compromised Attorney General says he is surprised that when his office adhered to the law and exceeded Court expectations there are people who are bastardising his office for complicity in the cynical re-detention of the activists and their swift re-admission to previous bail conditions attendant to each of them.
Much like Electoral Supervisory Commission Chairman Justice Chiweshe justifying failure by his officers to count 4 million Presidential ballots and announce results over 35 days when Mugabe was trailing Tsvangirai after the 29 March election but counting a similar number of ballots and announcing the 27 June runoff election within 48 hours including installing Mugabe to the thrown when he was left a lonely contestant in the race after Tsvangirai withdrew at the last minute but his name appeared on the ballot paper.
It is exactly this kind of mischief that makes Tomana a disgusting AG.
Here is a Principal State Prosecutor who from 2000 has been protecting the notorious CIO alleged murderer of Chiminya and Mabika having the temerity to crow about swiftly detaining for 5 months, innocent MDC political activists over allegations of attempting to topple a defunct Junta regime by insurgency and banditry actions.
When they were granted bail by the Courts he did everything in his power to keep them in detention only capitulating to political pressure to admit them to bail.
The AG blames the Defence attorneys of complicating admission to bail of their clients which his office was not initially opposed to but had to oppose as a matter of principle to show that the defence lawyers were incompetent as he got the decision to detain accused endorsed by the court and having conveyed the message showed his muscle by reversing the detention order through negotiations with the same lawyers whom he had reduced to size.
Hardly the stuff one would expect from a man of such responsible status in Zimbabwe.
Why would a well meaning AG use people he genuinely believes are good candidates for admission to bail punish the same people with detention orders simply because they have incompetent representation.
Are these people worthy anything to Tomana? Is there any wonder why the nation is unanimous that he must be relieved of the AG’s post?
Because of his ego the National Media Reform conference is now in jeopardy.
International donors and investors who the country is desperately trying to woe are having a re-think about coming to the country’s aid. Political temperatures which were subsiding have been ignited and ultimatums are flying around.
Surely the country deserves people with better judgement of implications of their ego satisfying indulgences.
This is what Zanu PF zealot Jonathan moyo did not see when he came out in full support of Tomana's irregular elevation to AG.
How independent is a judiciary that rubberstamps political decisions and pass them for court determinations as Catherine Chimhanda has been forced to do in this matter?
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