Tomanas reign as Attorney-General: a trail of questionable decisions

The case of Charles Nherera

On August 26 2005, Charles Nherera was charged with soliciting for a bribe of US$5.000 for each of the 18 Swaraj T3500 minibuses that ZUPCO intended to purchase from Gift Investments. At that time, he was the ZUPCO Chairman. He was charged with contravening the Prevention of Corruption Act. Although Nherera denied this offence, he was subsequently tried in the Harare Regional Court before Magistrate Mrs. L. Kudya and sentenced to two years in prison.

In support of its case, the State called seven witnesses who included Jayesh Shah, Minister Chombo, and the then Deputy Minister of Information and Publicity, Bright Matonga. At the close of the State case, Nherera made an application for his case to be dismissed but this was dismissed.

After the dismissal of the application for discharge, Nherera was put to his defence, and called Chipo Dyanda and Johannes Tomana as his witnesses. During the time of the events that led to Nherera being charged, both Dyanda and Tomana were ZUPCO board members. At the time of his testimony in court, Tomana was the Deputy Chairperson of the Anti-Corruption Commission. In his testimony he admitted that the allegations of corruption against Nherera had been brought to the ZUPCO Boards attention by Shah on the 21st of March 2005. He stated that the members of the board had listened to the recordings that Jayesh Shah had made of Nherera soliciting bribes. Tomana indicated that he had observed that the recordings were inaudible and consequently he did not investigate the matter further. He and his board colleagues did not report the matter to the police.

That Tomana, who was the Deputy Chairperson of the Anti-Corruption Commission, gave evidence as a defence witness on behalf of a person charged with corruption, raises eyebrows on its own as he ought to have given evidence in aggravation. That he failed to call for an independent forensic investigation by both the police and the Anti-Corruption Commission is astounding.

Kudya was unimpressed by the evidence of Chombo, Matonga, Tomana and Dyanda. On Page 5 of her judgement, she said: The court also observed from the outset when the Minister of Local Government, Dr Chombo and Deputy Minister Matonga gave their evidence that there were a lot of unspoken features about the case which, if had been clearly laid out, it would have been easier to conclude whether they were in as defence or State witnesses. It was clear that their non-committal evidence spoke volumes of what was happening in the instant case. Without evidence to support their level of involvement in the alleged scam, the court also treated their evidence with utmost caution, lest it be swayed and make unsound conclusions in as far as the matter was concerned.

In essence, in particular, the two witnessesevidence left a lot to be desired which the court is of the view that if the police were to delve deeper into it, it would be able to get to the bottom of exactly what was happening as far as the sale of the buses was concerned.

The Regional Magistrates judgement culminated in the conviction of Nherera and he was sentenced to a two-year jail term.

Tomana featured prominently in all stages of the Nherera corruption issue, in a manner that cannot be described as impartial. He played the role of Nhereras protector and ultimately succeeded in having Nherera absolved by the High Court. He used his position as Attorney-General to achieve this.

In addition, evidence that is in the public domain shows that immediately prior to the commencement of Nhereras trial, Tomanas law firm Muzangaza, Mandaza and Tomana acted as his lawyers in a dispute with Shah.

On August 4 2005, Muzangaza, Mandaza andTomana wrote to Atherstone and Cook demanding a sum of Z$100 million for what they alleged were defamation statements made by Shah. Having acted for Nherera, it is questionable whether Tomana ethically ought to have participated at ZUPCO Board meetings discussing the case. This is besides the position he held as Deputy Chairperson of the Anti-Corruption Commission.

It is clear from his statement and testimony in court that he did not advise the board to report the bribery issue to the police and to the Anti-Corruption Commission for further investigation. It is not clear on what basis the ZUPCO board decided that the very serious allegations against the Chairman did not require further investigations or discussion. What is clear however is that Tomana, who was at that stage, the Deputy Chairman of the Anti-Corruption Commission, did not refer Shahs allegations to the Anti-Corruption Commission for further investigation.

Tomana did not participate in the immediate Post-trial stage of Nhereras criminal proceedings. His re-engagement only happened after his appointment as Attorney-General in December of 2008. Before this Nherera had made concerted efforts to secure his release from prison, but these were all thwarted by the A-Gs office and he served his two-year sentence at Connemara Open Prison near Gweru.

But this changed completely after Tomanas appointment. On November 19 2009, Judge Karwi of the High Court quashed Nhereras conviction a year after he had completed his sentence after the A-G had consented to the appeal lodged by Nhereras lawyers. This consent was a drastic and inexplicable departure from the original position the A-Gs office had maintained on the issue. Nherera therefore succeeded in overturning a conviction with the consent of the A-Gs office, now headed by his former lawyer and defence witness.

The picture that emerges from the various applications that Nherera made in a bid to secure freedom before the appointment of Tomana as the Attorney-General is that the A-Gs office was of the view that Nhereras conviction was unquestionably sound.

In light of Tomanas active participation in the trial of Nherera as a defence witness, his offices volte face on the propriety of Nhereras conviction deserves scrutiny. The issue is further compounded by the fact that Tomana was part of the ZUPCO board which inexplicably failed to take action against Nherera when the issue of his criminal conduct was brought to it.

The proper course of action for the Attorney-General to have taken, given his personal involvement in Nherera case, was for him to recuse himself and his Office from Nhereras case in terms of Section 6 (i) of the Criminal Procedure and Evidence Act which states that;

The Attorney-General may, when he deems it expedient, appoint any legal practitioner entitled to practice in Zimbabwe to exercise all or any of the rights and powers or perform all or any of the functions conferred upon him by subsection (5) of section 76 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings.

Tomanas failure to do so casts the integrity of the Office in bad light. Even more disturbing is the fact that there is no record of Nhereras failed High Court application which was referred to by C J Chidyausiku when he dismissed Nhereras application for review of the Regional Court proceedings. This record would reflect the A-Gs arguments in opposition to Nhereras bail pending appeal application. These proceedings would also contain the High Court Judges reasons for concluding that the appeal was unlikely to succeed. The absence of this record of proceedings has serious implications.

Tomanas involvement: Time-line

Johannes Tomana was involved in one way or another in the Nherera bribery saga throughout its lifespan in the following manner;

(a) March 21, 2005 – Tomana attended a meeting in which Jayesh Shah made allegations of bribery against Nherera

(b) March 22, 2005 -Tomana attended a special board meeting convened by Nherera to discuss the bribery allegations. The board decided not to take the matter any further. Tomana, in his capacity as Deputy Chairperson of the Anti-Corruption Commission, did not refer the corruption allegations to the police or his commission.

(c) July 27, 2005 – Tomana recorded a statement outlining events a and b above.

(d) August 4, 2005 -Tomanas law-firm wrote to Shahs lawyer threatening to sue Shah for making corruption allegations against Nherera.

(e) Tomana then participated in the trial against Nherera as a defence witness giving exculpatory evidence in court.

(f) November 19, 2009 – Tomanas office consented to Nhereras appeal.