HARARE – Guthrie Munyuki, our senior assistant editor sits down for a chat with newly-appointed Prosecutor General (PG) Johannes Tomana.
Below are excerpts of the interview.
Q: PG congratulations on your appointment as Zimbabwe’s first Prosecutor General. What does your new job entail?
A: Thank you very much. My new post is very straightforward.
My new mandate is set out to confine to upholding the law that is in other words to say to enforce the law; which means in short, to prosecute all offences.
My previous role extended beyond that. I would also advise government, I would also represent government in civil litigation and also do drafting on behalf of government.
Those other roles now remain under the new office of the Attorney General whose term as you know is now different and whose level is also different.
He must be at the level of a High Court judge and he sits in Cabinet and he sits in that office for five years which means his term of office is tied to the political term of office of the executive and government which makes it purely a political kind of outfit.
Why? Because he will no longer have the protections that were attached to the old office where the Attorney General is treated the same way judges are treated.
You are fired only where a tribunal has been set up to inquire into whatever allegations of wrongdoing and then come up with a finding which is confirming wrongdoing that the government backs upon which you are fired.
If it doesn’t, you get reinstated. That doesn’t happen to that post anymore.
You are fired and appointed at the pleasure of the President which is not what used to be the case.
The National Prosecuting Authority, you may know, is having a term of six years but his appointment and his dismissal are similar to the role before the expiry of six years, are similar to the conditions that are attached to the judges and additionally that office has been elevated to the level of a Supreme Court judge level.
So it is defined like that. We are not just looking at making sure that the laws of Zimbabwe are given effect to and where they are disobeyed we will effectively prosecute to discourage offence.
Q: What can we expect from you as the PG?
A: I guess you can expect the best from me.
It’s not like new. We have been prosecuting and we will continue to prosecute.
The only difference is that we are now a stand alone and more focused in the sense that we are now responsible both for the professional mandate as well as the administrative mandate.
In the previous set up, the administrative mandate resided with Public Service through the ministry.
Now both the admin and the professional mandate are self contained and as you know I am supposed to be assisted by a board to administer the NPA, which means we do our own finances, our own human resources, we employ and we dismiss.
This used to be resident in Public Service. So it makes us more focused in the sense that we are like a one-stop-shop; we actually deal with all matters that would help or assist us in discharging our mandate.
In my view I think the only thing that I see clearly as making a statement is that maybe Zimbabweans decided to respond to the need to really benefit from the profession of law by turning up law enforcement. Why?
Because if all that we do is to simply uphold the law by enforcing it, it means that the country will largely benefit from an effective law enforcement which we know is the pre-requisite for law and order in any civilised community.
Q: You have quickly come out of the blocks and said there must be a review of the ‘light’ sentence passed on MDC’s Morgan Komichi for being found with a used ballot paper before elections.
What powers do you have to review sentences passed at Magistrates Court, High Court and the Supreme Court?
A: Well to say powers of review is the wrong way of asking me the question.
Why? Because we don’t do reviews but we cause reviews to be done if there is need to.
We don’t handle appeals but we appeal if there is need to do that.
If you accept the position (that) says our role is to ensure that the laws of this county are enforced so that the country benefits from the protection of law which means the country is able to develop itself in tranquility and in order.
The assumption that we are, ourselves, in complement with the other arms that also work together to law enforce, the assumption that we are doing our best to do this exercise, we are discouraging the breaking of laws which is contributing to the breakdown of law and order.
Now if you look at the offence in question, which at this stage I can confidently say we have managed to prove beyond reasonable doubt; the courts have agreed with us that an offence was committed.
Now, starting from there, what type of offence was committed? It’s an offence that actually attacks the credibility of an election; it’s an offence that actually threatens the credibility of an election.
Now being Zimbabwe and being a Zimbabwean, you would know the consequences of an election that is not credible in this world.
The moment people out there say our election is not credible what it means for our industry is dire.
What it means for our employment situation in the country is dire; which means what it means for us as a people is quite unthinkable.
If anybody, actually conscious to committing such an offence that would actually undermine the things that Zimbabwe needs the most — to be accepted by the whole world that we are actually holding our elections in a manner that the world must accept as credible and therefore cause the world to respect us and do business with us in the interest of actually causing us to participate in the global kind of race for development.
If anybody wants to undermine that, does that not sound serious as an offence?
Is it equal to pick-pocketing? Is it equal to stealing a cellphone?
You know cellphone thieves are being sent to jail. You know pickpockets are being sent to jail but do they harm only individuals?
He, (Komichi) potentially, was going to harm the whole nation and to undermine the interests of the whole nation. And community service is the effective punishment?
I disagree as a law enforcement agent.
I think the court erred and it’s on that basis that we are saying we would try the higher court to see whether they don’t agree with our observation that serious offences must be punished seriously and trivial offences, yes, can be punished trivially.
Q: So does this set a precedent of future appeals against court rulings?
A: No. It doesn’t set a precedent at all because that’s what our mandate is.
If we agree with the sentence we don’t do anything. If we disagree with it we appeal; that is part of the law. So I am not setting a precedent I am simply upholding the law the way we are guided by the same.
That’s the job, to make sure that justice is done.
I think we must also accept that when a guilty person is acquitted, justice has not been done.
I hope everybody else will agree that if an innocent person is sent to jail, justice has not been done.
Justice is done when an innocent person is sent home.
Justice is done when a guilty person is sent to jail.
And in achieving that, it is important that everybody understands it is a collective responsibility, it’s not the job of the police only, it’s not the job of the prosecution only, it’s not the job of the judiciary only, it’s our collective responsibility to administer justice.
If, for example, an innocent person goes to jail, both the judiciary, the prosecution and the police are guilty, which means the whole country is guilty.
When a guilty person goes home, there is a miscarriage of justice.
It is failing, not just of prosecution, it’s failing of the judiciary and it’s failing of the police. We never fail alone and we never succeed alone, it’s a collective responsibility.
Q: Would you have an idea of the backlog of cases that you are supposed to prosecute?
A: The point is, the National Prosecuting Authority, it’s too early for it to talk about that.
We haven’t started doing that which we are answerable to as an authority. You know the Act is yet to be put in place.
You know the minister (of Justice, Legal and Parliamentary Affairs) is yet to appoint the board.
Until that is done, we are not able to set ourselves up lawfully to be able discuss this mandate.
I am hoping that when we are set up, we will able to go after that which is our mandate in a manner that is effective, which means if we are capacitated enough in terms of both the material requirement and the human resources, we will be able to do our best.
Our best is not because we wish to, but because we are capacitated as well.