AG responds to prosecutors

conduct themselves in a manner that undermines the function of his office.
That discretion, he says, cannot be subjected to judicial scrutiny.
Mr Tomana was responding to an application by five executive members of the Zimbabwe Law Officers Association who were seeking restoration of their prosecuting certificates.
Chief law officer Mr Chris Mutangadura is representing the AG while Ms Beatrice Mtetwa of Mtetwa and Nyambirai is acting for the five -Leopold Mudisi, Dereck Charamba, Mehluli Ncube, Musekiwa Mbanje and Patrobs Dube.
The five were relieved of their duties as prosecutors and law officers after they failed to respond to Mr Tomana’s letters that demanded an explanation on the just ended strike by Ziloa members.
They filed their urgent chamber application at the High Court on Monday this week seeking urgent reinstatement of their practicing papers.
Their argument is based on the fact that the AG was not their employer and that the withdrawal of the prosecuting authority was done outside the law.
They argued that they were “fired” without being accorded an opportunity to be heard.
Mr Tomana, in his response, admitted that he was not the employer of prosecutors but counter-argued that the law gives him power to withdraw prosecuting certificates.
“In terms of section 76 of the Constitution of Zimbabwe, the AG is the prosecuting authority and this is a Constitutional appointment.
“His powers to issue or to withdraw a certificate or authority to prosecute, is at his discretion and such discretion cannot be subjected to judicial scrutiny. For that reason the applicants have no cause of action,” he said.
Mr Tomana is also challenging the decision by the five to sue the AG, his deputy Mrs Florence Ziyambi and the acting director of prosecutions Mr Tawanda Zvekare in their personal capacities.
“First to third respondents’ actions were done in their official capacities and the applicants have not justified why they should be cited in personal capacities. . .” he said.
He said the order for spoliation being sought was incompetent adding that the only way to challenge withdrawal of the certificates was to file a review application.
Mr Tomana said the issuance and withdrawal of prosecuting certificates was part of his constitutional mandate as the Attorney General and that the fact that the five were civil servants did not remove them from his superintendence.
“What applicants do not seem to appreciate is that even though they are employed by PSC, they cannot oust my constitutional mandate to give and take away title to prosecute at the public instance.
“Whoever is employed as a public prosecutor must not work outside my general and specific instructions. What the applicants fail to grasp is that the PSC as the employer superintends the applicants’ recruitment and remuneration but the actual operational independence of my office cannot be arrogated to any person or authority,” said Mr Tomana.
Mr Tomana said the five were the ones who were stalling prosecution by mobilising Ziloa members to stage an industrial action and that they should not now claim that the matter of their reinstatement was urgent.
“I do not see the urgency of applicants seeking to be reinstated as prosecutors when they are the ones who were stalling prosecution of matters through their conduct,” the papers read.
Mrs Ziyambi and Zvekare deposed their affidavits and they largely concurred with the AG’s statement.
Justice Ben Hlatshwayo is expected to hear the matter sometime this week.