Firing the Prosecutor-General: The Procedure

Zimbabwe’s First Lady, Grace Mugabe yesterday berated the Prosecutor General, Johannes Tomana in the wake of his recent reckless and thoughtless remarks in respect of age of consent to sex and child marriage. His scandalous comments have widely been interpreted as showing little regard to the protection of young girls and giving comfort and protection to paedophiles.

Prosecutor General, Johannes Tomana
Prosecutor General, Johannes Tomana

She severely criticised Tomana, insinuating that the alleged remarks reflected the mentality of a paedophile. Her comments have been widely taken as a clear signal that Tomana’s tenure as the country’s top prosecutor is imperiled. This view is, of course, based on recent precedent.

The last time Zimbabwe’s First Lady issued a similar tirade, it was against former Vice President Joice Mujuru, who ended up losing her job in very dramatic fashion. While President Mugabe had kept a seemingly disinterested distance during the early phase of the campaign, it became obvious that his wife’s conduct had his blessings; that perhaps, she even operated under his licence. It is understandable, therefore, that many people see her recent pronouncements against Tomana as being indicative of the President’s thinking regarding the PG.

Nevertheless, while she clearly has political clout and influence, the First Lady does not have the constitutional authority to fire Tomana. Her authority lies elsewhere, in her role as head of the powerful women’s wing of the ruling party but more importantly, as the closest confidante to the President. It is this “soft power” that she wields that might be decisive, even though she lacks the legal authority to sack Tomana. It was this same “soft power” which got rid of Vice President Mujuru, and therefore, it is not to be taken lightly.

It is important however, to respond to enquiries from members of the public who wish to know the procedure for removing the PG.

Removing the PG

The PG’s office is heavily protected in the constitution, in the same way that judicial office is protected. In terms of s. 259(7) of the constitution, the provisions applicable to the removal of a judge from office are used in respect of the removal of the PG from office. These provisions are listed in s. 187 and it is to this section that we must turn for guidance on the procedure.

The procedure for removing the PG involves an independent tribunal that is appointed by the President to carry out an investigation into the question of removal. In terms of s. 187(2), if the President considers that the question of removing the PG ought to be investigated, he will appoint a tribunal to carry out an inquiry into the matter. The independent tribunal consists of at least 3 members, one of whom must have judicial experience and at least another who must be a lawyer chosen from nominees submitted by the Law Society of Zimbabwe.

It is this independent tribunal that conducts the inquiry into the question of removing the PG. It must report its findings to the President and make the recommendation whether or not the PG should be removed.

In terms of s. 187(8), the President has a mandatory obligation to act in accordance with the tribunal’s recommendation. This means the actual decision whether or not to remove the PG actually lies not with the President but with the tribunal. The President is bound by the tribunal’s recommendation. Therefore, in terms of the constitution alone, if Tomana were to be investigated, his fate would lie in the hands of the independent tribunal, not President Mugabe or the First Lady.

However, pending completion of the investigation by the independent tribunal, the PG would be on suspension, in terms of s. 187(10). The President can revoke the suspension upon the recommendation of the independent tribunal.

This is the technical procedure that would have to be followed should the President wish to sack Tomana. Constitutionally, it is not as easy as the firing of a Vice President that we witnessed last December. The Vice President currently serves at the pleasure of the President and therefore the position depends entirely on the whims of the President. The position in respect of the PG is different. The grounds of removal of the PG are quite strict and limited. In terms of s. 187(1), the PG can only be removed for:

“(a) inability to perform the functions of his or her office, due to mental or physical incapacity;

(b) gross incompetence; or

(c) gross misconduct …”

As is evident from the wording of the provision, the threshold is quite high. Some may question why it is so difficult to remove a PG. It is important to remember that these are the same provisions designed for the removal of judges. The rationale behind the strict and protective character is to safeguard and promote the independence of these offices. The reasoning is that in order to discharge their functions properly, the prosecutor and the judge must be independent.

There are a number of mechanisms devised to protect this independence, including the manner of appointment, the protection of their remuneration, protection from external influence and protection of their tenure of office. This is why it is hard to remove them from office. The reasoning is that their independence would be undermined if they could be easily removed from office. It is for this reason why the lack of protection of the Attorney General’s tenure of office is a regrettable weakness of the new constitution.

So constitutionally, it won’t going to be easy to remove Tomana from office. When Tomana said a couple of weeks ago that he serves at the President’s pleasure, he may have been referring to the political element because clearly at law, his office enjoys greater protection than that. He was probably referring to his political reality where he sees himself as a political appointee, but his constitutional position is more heavily protected than that.

Resignation

What I have stated above does not discount resignation as a means of ending the PG’s stay in office. S. 341 of the constitution clearly states that any person who is appointed or elected to an office established by the constitution may resign from that office by written notice addressed to the person that appointed or elected the office-holder.

Therefore, the entire procedure outlined above can be foregone, if the PG decides to throw in the towel. This may be a viable course of action on the basis that he has lost confidence of the appointing authority or the people that he is supposed to serve. Certainly, the petitions and protests of children’s rights movement and the public outrage suggest that he has lost the confidence of the public constituency that he is expected to serve. Their argument is that it is difficult to see how a person holding the views expressed in that interview can be trusted with prosecution of sexual crimes and the protection of children.

Reviewing the MP’s case

Already there is a case involving a political figure which has raised concerns over the manner in which the PG handled it. This is the matter involving allegations of rape of a minor child by a current Member of Parliament. The PG refused to prosecute. He also refused to support a bid for private prosecution launched by the abused girl’s guardians. In fact, the PG has gone ahead to petition the Constitutional Court arguing that private prosecutions should be outlawed as they undermine the independence of his office.

I understand this is a case that is pending at the Constitutional Court, which if allowed, would ban all private prosecutions. In my opinion, there is a case to be made, in light of the PG’s recent reckless remarks on age of consent to sex, for a review of the accused MP’s case by an independent authority. A respected lawyer preferably with prosecution experience or a retired judge, can be given a mandate to review the case independently to determine whether or not the PG was right to refuse to prosecute the MP for the alleged rape of the minor.

Indeed, if the PG himself is sure and confident that he made the right call, he should commission the review himself and ask the Law Society to nominate candidates to perform that review. This would clear all existing doubts that his personal views on age of consent and child marriage may have influenced his decision not to prosecute and to vehemently oppose the girl’s guardians’ efforts to proceed by way of private prosecution. It would also remove doubts that he can’t be trusted with the role of protecting children in similar cases.

There is a very current precedent in the UK, where the Director of Public Prosecutions (Tomana’s equivalent) has been under severe fire after her decision to refuse prosecution of a political figure for sex-crimes was overturned following an independent review by a barrister. In the UK there is a facility called Victims’ Right of Review under the Crown Prosecution Service, which allows victims and their families to seek a review of the prosecution’s decisions. We do not seem to have such a facility in Zimbabwe and it is probably about time that we consider a similar facility to protect the rights of victims who are at the mercy of the PG’s decisions, which may be wrong in cases.

However, with a PG who is petitioning the Constitutional Court to ban private prosecutions on the ground that they undermine his authority, we are unlikely to see such a facility under his watch. Nevertheless, it is now even more imperative that a review of the accused MP’s case be conducted as soon as possible as there is a real risk that the PG may have allowed his prejudices to influence his decision to refuse prosecution.

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Post published in: Analysis

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