Kereke trial haunts To­mana

Chronicle (Zimbabwe) - - National News - Tendai Ru­papa Harare Bureau

THE Na­tional Pros­e­cut­ing Author­ity has in­sisted that sus­pended Pros­e­cu­tor-Gen­eral Jo­hannes To­mana be called to court to per­son­ally an­swer to the ap­pli­ca­tion for le­gal costs in­curred in the pri­vate pros­e­cu­tion of for­mer Bikita West leg­is­la­tor Mun­yaradzi Kereke.

In a let­ter ad­dressed to the court, act­ing Prose­cu­torGen­eral Ad­vo­cate Ray Goba, said To­mana, whose de­ci­sion not to pub­licly pros­e­cute Kereke is ques­tion­able, should be given an op­por­tu­nity to ex­plain him­self.

“In or­der that the court may prop­erly de­ter­mine the ques­tion of costs, I re­spect­fully sub­mit that it is fair and rea­son­able that the then At­tor­ney Gen­eral whose de­ci­sion is im­pugned be af­forded an op­por­tu­nity to be heard in per­son,” he said.

“I fur­ther sub­mit that an in­formed ap­praisal of the cir­cum­stances of that de­ci­sion is only pos­si­ble af­ter giv­ing him au­di­ence.”

Adv Goba said since the State was not part of the pros­e­cu­tion, the “audi al­teram partem prin­ci­ple” (prin­ci­ple to nat­u­ral jus­tice) should be vis­ited and State should be given an op­por­tu­nity to be heard be­fore a de­ci­sion is made. He, how­ever, likened pri­vate pros­e­cu­tion to pri­vate lit­i­ga­tion say­ing that in civil mat­ters, the los­ing party bears costs.

“In any event, in the penul­ti­mate anal­y­sis and con­sid­er­ing that a pri­vate pros­e­cu­tion is in the na­ture of ‘pri­vate lit­i­ga­tion’, it stands to rea­son that like in civil mat­ters, the bur­den of costs ought to fall on the un­suc­cess­ful party,” reads part of Adv Goba’s let­ter dated Au­gust 5.

Adv Goba fur­ther said that there has to be ex­cep­tional and com­pelling rea­sons for the State to be bur­dened by the costs other than the mere al­le­ga­tion that To­mana’s de­ci­sion turned out to be wrong.

“If such were to be vis­ited on the State then as the mat­ter is one of statu­tory dis­cre­tion, then such must be ex­er­cised ju­di­ciously and on ex­cep­tional grounds other than merely that the de­ci­sion of the public pros­e­cu­tor/AG turned out to have been wrong,” he said.

Prin­ci­pal Law Of­fi­cer Mr Mor­gan Dube, who was in charge of set down of­fice then, de­posited an af­fi­davit that was at­tached to the let­ter in which he nar­rated how To­mana de­clined to pros­e­cute Kereke.

He said what­ever he did on the case, he was work­ing un­der To­mana’s in­struc­tions.

“On Septem­ber 22, 2011, the then AG in­structed that pros­e­cu­tion be de­clined in the mat­ter of State ver­sus Mun­yaradzi Kereke who was fac­ing rape and in­de­cent as­sault charges in­di­cat­ing that there were in­con­sis­ten­cies in the ev­i­dence of wit­nesses,” he said.

“Af­ter a lapse of about a year, the com­plainant’s guardian con­tin­ued to write let­ters seek­ing to know the po­si­tion of the case, and I would each time brief the then AG. He later or­dered me to re­call the docket from the po­lice and send it for pros­e­cu­tion.”

He said the mat­ter was fi­nally set down for trial on Oc­to­ber 10, 2012 and the trial date was Novem­ber 14 of the same year.

“The then AG Jo­hannes To­mana then in­structed me to halt the process of ser­vice of sum­mons to the ac­cused per­son pend­ing a fresh record­ing of a wit­ness state­ment from the rape vic­tim. The com­plainant’s guardian re­fused to give an­other state­ment stat­ing that he was sat­is­fied with what was in the docket.

“Mr To­mana in­di­cated that the de­ci­sion to de­cline pros­e­cu­tion was to stand,” he said.

In a let­ter to pri­vate pros­e­cu­tor Mr Charles Warara, Re­gional mag­is­trate Mr Noel Mu­peiwa said, “As we agreed, the mat­ter is set down for Au­gust 15. If Hon Jo­hannes To­mana man­ages to avail him­self on that day, then we will hear his sub­mis­sions, but if he fails to avail him­self, be pre­pared to an­swer to these sub­mis­sions and the rul­ing will then fol­low.”

Mr Warara made the ap­pli­ca­tion for le­gal costs three weeks ago, in terms of Sec­tion 22 of the Crim­i­nal Pro­ce­dure and Ev­i­dence Act.

In his ap­pli­ca­tion, he wants the court to con­sider the le­gal costs either against the PG’s Of­fice or Kereke.

Newspapers in English

Newspapers from Zimbabwe

© PressReader. All rights reserved.