The Rule of Law: How bad can it get?

South African legal circles are cautiously optimistic about President Zuma’s choice of Shaun Abrahams as head of the National Prosecuting Authority - hopeful that he will be unflinchingly dedicated to the law, and anxious, if he lives up to that hope, that he will promptly follow his four predecessors.

Johannes Tomana, the prosecutor-general, is stunningly in violation of the requirements of his position.
Johannes Tomana, the prosecutor-general, is stunningly in violation of the requirements of his position.

It is the converse in Zimbabwe. Johannes Tomana, the prosecutor-general, is stunningly in violation of the requirements of his position, and dedicated solely to the rich and powerful senior ranks in the long-ruling party, ZANU(PF). President Mugabe is evidently delighted with his performance and has kept him there for seven years.

It is unnecessary to repeat the denunciations of Tomana made by Zimbabwe’s largely respected private legal and human rights fraternity. His record speaks for itself. Read on, and weep.

An attorney in private practise in the early 2000’s, he was recruited by Jonathan Moyo, Zimbabwe’s unpredictable information controller, in the drafting of one the world’s most repressive media laws.

He was noticed and in 2006 was appointed deputy attorney-general, with his boss, Sobusa Gula-Ndebele, who took the constitutional imperatives of his post seriously and so lasted scarcely two years. Tomana became attorney-general in late 2008.

Murderous second round

That was in the aftermath of the murderous second round of presidential elections that year. Defeated opposition leader Morgan Tsvangirai MDC’s party delivered to Tomana’s office a list of the names and addresses of

184 people, including a boy of three years, who had been murdered. Next to most of the names were the names of the perpetrators, identified by witnesses.

Tomana ignored the list, and instead hounded 26 MDC MPs with malicious prosecutions.

Early in 2009 Zimbabwe had a coalition government of ZANU(PF) and the MDC.

The former was anxious that its partner in government would halt the endless wave of violent farm invasions. Tomana was despatched to lecture to police and government administrators on how to achieve “quicker prosecution” of white farmers trying to stay on their land, and how to get rid of their lawyers.

The pattern surged, with the vindictive arrest and detention of anyone – including lawyers – perceived as an opponent of Mugabe, and the unofficial granting of immunity to his favoured supporters. Human rights lawyers produced lists of thieves, frauds and smugglers among ZANU(PF)’s rich and powerful, to no effect.

Mutasa arrested

In early 2010, the extremely wealthy and powerful Jane Mutasa, a major shareholder in the Zimbabwe subsidiary of Telecel International, the Cairo-based mobile phone company, was arrested with three Telecel executives, on charges of stealing US$1.7 million worth of the company’s recharge cards.

It goes without saying she was also connected closely to Grace Mugabe and others in the inner sanctum of ZANU(PF).

In their first appearance in court, the prosecution opposed bail on the grounds of “overwhelming evidence and risk of absention.” Five weeks later, however, in their second appearance, the state lawyer announced that the case was being withdrawn. No evidence, he said.

Telecel’s lawyers asked Tomana to issue a certificate stating simply that he had declined to prosecute. The document would enable Telecel to bring a private prosecution against Mutasa and co.

Tomana refused. Telecel appealed to the administration court to compel him to issue a certificate. Here they encountered Judge Ben Hlatywayo, one of ZANU(PF)’s best-liked judges. He ruled against Telecel.

It was 2011 and the company appealed to the Supreme Court in Harare.

Judgement took three years to come, but Telecel got what it wanted and Tomana was directed to issue a certificate within five days.

He ignored the court’s ruling. The lawyers wrote to him, and he ignored that too. Then he went to the Constitutional Court, the country’s highest judicial body and appealed against the Supreme Court’s directive. He lost.

Telecel’s lawyers wrote to him directly, and he took no notice.

Immunity

“He (Tomana) has taken the step of granting immunity against Mutasa,” said lawyer Isaiah Mureriwa. “That, he cannot do.”

So the lawyers urged Telecel to charge Tomana – who by now was prosecutor-general, in line with constitutional changes – with contempt of court. But other forces had been marshalled to protect Mutasa.

Two months ago the state-run Postal and Telecommunications Authority of Zimbabwe (POTRAZ) threatened to withdraw Telecel’s operating licence. Many millions of dollars invested was about to go down the drain.

The company drew back. An approach has now been made to Mutasa, lawyers said. And POTRAZ, whose operations could fit into a small house, is building a huge multi-storey office in Harare’s northern suburbs.

The foregoing pales into the mundane compared with what follows.

Private hospital

On August 22 in 2010, a 10-year-old girl went with her 15-year-old sister to the northern suburbs home in Harare of their aunt to help her look after her infant while she was busy with other duties. She was the wife of economics doctor Munyaradzi Kereke, then deputy director of the Zimbabwe central bank.

He is closely connected to ZANU(PF) and enormously wealthy. He built a large fully equipped private hospital in the northern suburbs, though it is now run-down and abandoned.

Two months and two weeks passed. Then the two girls – who are minors and cannot be named – went to speak to their grandfather and guardian, Francis Maramwidze. They told him that the night at the Kereke’s while they were with the infant, Kereke had entered the room with a firearm. He raped the 10-year-old and then fondled the older girl, they said. He then threatened them with the weapon if they told what he had done.

Maramwidze took the younger girl to Harare’s state Parirenyartwa Hospital where she was examined. A “Report on Examination in a case of Alleged Rape” dated November 5, 2010, states that the girl’s hymen was broken, the vagina was unusually wide – a sign of forcible entry – and there were small tears on the mouth of the vagina. She was experiencing mild pain.

The medical report was forwarded to police and Marimwadze was told to expect a call from police to report to the station, and to be told of Kereke’s arrest. Then nothing.

Marimwidze went to his nearest police station, gave a report and laid charges against Kereke. The report was passed on to two other police stations. Officers there said they knew nothing about the case.

An Inspector Mbiringwe eventually took a statement from the girls. His report states that there was substantial evidence of rape. Nothing again.

Marimwidze said Kereke came to his home five times, first pleading with him to drop charges, then threatening. The guardian refused. Three months after the children’s disclosure, he engaged a lawyer, Charles Warara. He wrote to police with a 48-hour deadline to respond. He was ignored. More letters, deadlines. Excuses, couldn’t find his letter. Nothing.

Political reasons

Warara tells police: “You are sitting on for political reasons., or you are paralysed by fear of the status of the individual (Kereke).”

The affair is now on a well-worn path. Warara writes to Tomana insisting that Kereke be prosecuted. Tomana declines. Court order after court order.

After the high court directed him to issue a certificate to allow private prosecution, he went to the Constitutional Court, claiming his “rights had been infringed.”

In October, the court dismissed his claim. He claimed he could not act without seeing the written judgement. This appeared later, to no avail.

Warare is now trying to bring contempt of court charges against Tomana.

Then out of the blue, last week Tomana gave an interview to the provincial Chronicle newspaper in Bulawayo in western Zimbabwe, on the issue of the age of consent. He insisted that girls aged 12 and above should be allowed to have sex, since they are old enough to make up their own minds. Rather than be stuck at home in poor rural homes, they should be allowed to get married.

“We’ve nine-year-olds, 12-year-olds, 13-year-olds who are actually not in school who are not doing anything, for example. What are we saying to them? We say you can’t even do this (have sex) when the environment is not giving them alternative engagement?”

He also defended community service sentences in Zimbabwe given recently to paedophiles, allowing them to work in schools.

His remarks provoked a blizzard of rage on social media, calling him a pervert, among other ascriptions. Child protection organisations followed.

Now it emerges, Tomana is at risk of being sacked. But not because of his shameful protection of a high-ranking paedophiles and assorted crooks, or his shocking opinions on child sex. He has fallen under the suspicion of Mugabe and the mobsters around him that he is linked to the faction in ZANU(PF) under former vice-president Joice Mujuru and the scores of other old party hacks who have been expelled in the last six months, over claims – probably fictitious – that they were plotting to assassinate the 91-year-old would-be president-for-life.

Meanwhile, Dr Kereke has become a respected MP for a rural constituency in southern Zimbabwe.

Patriarchy always fights back
Egg project hatches profits for rural women

Post published in: Analysis

Leave a Reply

Your email address will not be published. Required fields are marked *