Tomanas reign as Attorney-General: the case of Patrick Mavros

When questioned, Mavros indicated that he only dealt with ivory and silver. The detectives searched the premises and recovered 19 transparent plastic sachets containing gold granules with a total weight of 9008.1 grams valued at US$255 501.67. Mavros was arrested and charged with Contravening Section (3) (i) (a) of the Gold Trade Act for possessing gold without a licence (Highlands CR 88/9/09).

In his warned and cautioned statement which was recorded on the same day, Mavros admitted to the charge of possessing gold without a valid licence. However, he indicated that he had made an application to the Ministry of Mines for a licence in vain. He indicated that he had even joined the Jewellery Council in a bid to obtain the licence.

Mining Commissioner Ivan Ngoni Chihota told the police that Mavros gold-trading licence had expired on December 31 2007 and had not been renewed because Mavros had failed to pay the fee of US$1 000 to the ministry. The secretary of the Jewellery Council, Dennis Balon, said that although Mavros had applied he was not yet a member. The Public Prosecutor at the Harare Magistrates Court set the matter down for hearing after having satisfied himself that there was overwhelming evidence against Mavros, who said he intended to plead guilty to the charges.

However, on October 15 2009, Michael Mugabe of the Attorney-Generals Office instructed Obi Mabahwana, a Prosecutor who was handling the case, to decline the prosecution of Mavros. Mabahwana duly complied with the instructions and the charges were withdrawn.

Analysis of Mugabes Memo

Section 3 (i) of the Gold Trade Act states that; Prohibition of dealing in or possession of gold

(1) No person shall, either as principal or agent, deal in or possess gold, unless

(a) he is the holder of a licence or permit; or

(b) he is a holder or tributor; or

(c) he is the holder of an authority, grant or permit issued under the Mines and Minerals Act [Chapter21:05] authorizing him to work an alluvial gold deposit; or

(d) he is the employee or agent of any of the persons mentioned in paragraphs (a), (b) and (c) and is authorized by his employer or principal to deal in or possess gold in the lawful possession of such employer or principal; and deals in or possesses gold in accordance with this Act and the licence, permit, authority or grant, if any, held by him.

In his memorandum Mabahwana, Mugabe admits that Mavros was found in possession of gold when he was not a holder of a permit or licence authorising him to do so.

He does not point to any fact that absolves Mavros of criminal liability. His main reason for directing that prosecution be declined is that the Ministry of Mines failed to grant Mavros a licence after he had applied for it several times. This is in direct contrast to Chihotas statement that Mavros was not granted a licence because he did not pay the renewal fee.

There is certainly no legal basis for the direction by Mugabe to Mabahwana. Taken to its logical conclusion, there can be no prosecutions of a person who has applied for a licence, be it a firearm, liquor, etc, but who is not for any reason granted the licence.

Abuse of office

In the absence of a proper explanation from the A-Gs office, the irresistible conclusion to draw from Mugabes Memo, which was copied to the Director of Public Prosecutions, is that the discontinuing of proceedings against Mavros was inspired by reasons other than legal considerations.

This renders Mugabe, the Director of Public Prosecutions, and the A-G Johannes Tomana liable for prosecution for either defeating the course of justice or criminal abuse of office. It is important to note that the offence that Mavros was charged with, carries a five year mandatory jail term upon conviction unless the convicted person demonstrates that there are special circumstances in the manner in which the offence was committed.

In Mavros case, it would have been extremely difficult for him to convince the court that there were special circumstances in his case. Having failed to pay the required fee, he was in wilful contravention of the law. Mugabes instructions, therefore, allowed him to escape a highly probable five year jail term.

Although Tomana was not copied in the memo, Section 76 (4) makes him solely responsible for the discontinuation of any criminal proceedings that have been set in motion by his office. It is unlikely that Mugabe would have made the decision that he did on such a serious offence without consulting or, at the very least, informing his superior. If he indeed received instructions, as is most likely, the source and context of the instructions ought to be determined.

Although it is not known what ultimately happened to the gold, as it could not be lawfully forfeited to the State by the court, it is most likely that the gold was returned to Mavros. Apart from the financial prejudice to the State, the A-G has in effect authorised the dealing and possession of gold without a licence. This amounts to economic sabotage by the very Office which ought to be guarding against such unlawful conduct. – Dont miss the final part of the TIZ report in next weeks issue of The Zimbabwean.

Transparency in Zimbabwes investigations reveal that the instruction of the A-Gs office to acquit Patrick Mavros of charges of possession and/or dealing in gold without a licence was inspired by reasons other than legal considerations.

TIZ asserts that: This renders Michael Mugabe, the Director of Public Prosecutions, and the A-G Johannes Tomana liable for prosecution for either defeating the course of justice or criminal abuse of office.