Tomana wants unfettered appeal powers

Chief Court Reporter
Prosecutor-General Johannes Tomana is seeking an amendment to the Supreme Court Rules to give his office right to seek leave to appeal at the court against High Court decisions on criminal matters from the magistrates’ courts.  Mr Tomana said the absence of a rule made under the Supreme Court Act to accord the Prosecutor-General’s Office the right of appeal was unconstitutional, adding that he was entitled to challenge any decision in any criminal matter at the superior court.

He said this in his constitutional application challenging the recent Supreme Court decision to dismiss the prosecution’s application for leave to appeal against the acquittal of Harare lawyer Mr Alec Muchadehama and the clerk of High Court judge Justice Chinembiri Bhunu, Mr Constance Gambara, on charges of contempt of court.

The pair was accused of allegedly facilitating the illegal release from Chikurubi Maximum Security Prison of two MDC-T officials – Gandhi Mudzingwa and Kisimusi Dhlamini – and photojournalist Andrison Manyere, who had been granted bail by High Court judge Justice Charles Hungwe in 2009.

But magistrate Ms Fadzai Mthombeni acquitted the two at the close of the State’s case as the prosecution failed to prove the essential elements of the                                            crime.

The prosecution sought leave to appeal against the magistrate’s decision at the High Court, but the application was thrown out.
It met the same fate when it tried to overturn the High Court decision at the Supreme Court.

Deputy Chief Justice Luke Malaba ruled that the PG’s application had no legal basis and struck the matter off the roll with costs.
Mr Tomana is now raising a constitutional issue and seeks an order for the insertion of a rule in the Supreme Court Rules authorising the Prosecutor-General’s Office to appeal against a High Court judgment refusing leave to appeal to the same court.

Mr Muchadehama and Ms Gambara, who are being represented by Ms Beatrice Mtetwa, are opposing the application, saying it was pure abuse of the office of the PG and the criminal justice system.