Tomana puts up spirited fight
The charges arose at the time he was AG and he has since challenged the validity of the process underway.
The matter is still pending at the apex court. “This has not stopped this process from proceeding. When this context is considered, it is constitutionally impermissible for the tribunal to go through this process,” said Mr Tomana.
In his defence, Mr Tomana seeks to rely on Section 69 of the Constitution of Zimbabwe, which provides that every person “is entitled to a fair hearing within a reasonable period of time”.
“The fact that the raising of these charges implicates breach of the fair trial guarantee renders the inquiry into these matters unconstitutional and therefore invalid,” he argued. “The tribunal should hold that it has lost the constitutional mandate to inquire into these stale and prescribed claims. It is further asserted that the tribunal’s right to proceed is prescribed.”
Mr Tomana also argues that there was no reason not to charge him of the alleged misconducts at the time they allegedly happened. “There has been no change in the government of Zimbabwe. There has been no change in her constitutional framework and statutory laws,” he said.
“The forces that are behind the activation of this process have been in existence as at the respective dates of the conduct now impugned. Nothing stopped those forces from activating this process earlier.”
Mr Tomana sought to explain the circumstances under which all the cases in which he is being probed were dealt with. On defying court orders, Mr Tomana argues that he complied with the orders issued by the court in Maramwidze and Telecel cases. He said despite his compliance with those orders, Telecel had not instituted any private prosecution. In the Maramwidze matter, Mr Tomana contends that although a prosecution had been conducted and a conviction secured, the accused person, Munyaradzi Kereke, had been acquitted on one of the two charges. “As regards the charge on which he was convicted, respondent observes that a notice of appeal has been filed,” he argues.
“Respondent consequently draws attention to the effect of the appeal on the charges now brought and will urge in favour thereof should occasion arise.” He denied that he was party to the proceedings in the Nherera-Shah matter. Mr Tomana argued that when two arms of Government are not agreed on a critical constitutional issue and are not agreed for good reasons, it is unacceptable for the other arm to use its might in a manner that forces the issue.