HARARE – President Robert Mugabe must quickly appoint a prosecutor general (PG) in line with provisions of the new Zimbabwe constitution to avert an impending constitutional crisis, law experts have said.
The current Attorney General (AG) Johannes Tomana is juggling both roles of prosecuting and advising the government at the same time, an untenable situation according to legal experts.
Under the new constitutional dispensation, the president should appoint a PG who heads the National Prosecuting Authority (NPA) and prosecutes on behalf of the State.
The constitution further states that, soon after the president is sworn-in, the responsibility for prosecuting criminal cases on behalf of the state is transferred from the AG to the PG.
Chapter 6 clause 5:27 of the new Constitution states that the president should appoint an AG who will be a principal legal adviser to the government and represent the government in civil and constitutional proceedings.
However, the president, since his inauguration on August 22, has not appointed the PG.
Constitutional law experts have said such a set up creates a constitutional crisis as Tomana’s independence as a prosecutor may be compromised by doubling up as government’s advisor.
Jeremiah Bamu, senior project lawyer at Zimbabwe Lawyers for Human Rights, said the president needs to resolve the crisis urgently.
“The president needs to appoint a PG who will head NPA and prosecute on behalf of the state,” Bamu said.
“We all know that there is a clause that states that when the president assumes office, the responsibilities of an AG are transferred to a PG.
“If the president is happy with Tomana assuming the PG’s role he needs to formally appoint him and swear him in.
“The current situation where we have Tomana being the legal advisor to Mugabe and a prosecutor is not constitutionally upright. The crisis stems from the fact that as an advisor to the government, Tomana serves at the mercy of the president."
“This may compromise his role in prosecuting and as such there is need for the president to make appointments so as to avoid this irregularity.”
Greg Lennington, a constitutional law expert at the University of Zimbabwe, said the current situation does not bode well for the rule of law.
“There is indeed a clash of interests because one individual cannot prosecute and be the legal advisor of the government at the same time,” Lennington said.
“An individual cannot have such a broad mandate because it will compromise the rule of law. The president needs to appoint a PG. If Tomana is elevated to that post, an AG has to be appointed.”
Tomana is widely tipped to clinch the position of PG, while former Copac co-chairperson Paul Mangwana has been tipped to be the new AG.
Tomana was appointed substantive AG in 2008 to fill a post left vacant by Sobusa Gula-Ndebele, an ex-military supremo, who was fired in May of that year after a three-man tribunal found him guilty of conduct inconsistent with a public official after repeatedly clashing with Justice minister Patrick Chinamasa.