The Sunday Mail
Tazorora Musarurwa
Talented fictional writers have a way in which they describe the environment in which their characters are cast for the reader to get to know more of the character through such environment and anticipate what lies ahead.
They call it imagery.
Renowned playwright William Shakespeare often used the weather, using storms and lightning to introduce evil and all that is associated with a storm – destruction, uncertainty, fear, and the like. Thomas Hardy, on the other hand, would dedicate pages to describing just a hill.
A deeper analysis shows how that environment is associated with the characters. The effort talented fictional writers put for the readers to understand their characters are remarkable. One would be forgiven for thinking that such imagery does not exist in reality. Zimbabwe is currently facing one of its worst droughts.
A maize crop that would have fed tens of thousands of families has wilted and died before it budding.
Boreholes supplying water that is essential for both human and animal life have dried up and only air and the smell of water can be exuded from them. The animals are now as thin as the people and the people are as thin as the crops. The Angel of Death lingers. With the bumper harvests of yesteryear, few would have anticipated that this year would be one in which all their hopes and expectations would be met with extreme hunger and poverty.
While the majority of Zimbabweans were in this dire state of hopelessness, on February 1, 2016 the Commissioner-General of Police proceeded to cause the arrest, and detain the Prosecutor-General, Honourable Johannes Tomana. Tomana’s arrest stems from the alleged use of the so-called Molotov cocktail by four suspected terrorists at Gushungo Dairies, a property owned by the First Family.
A Molotov cocktail, also known as a petrol bomb, poor man’s grenade, fire bomb or just Molotov, is a generic name used for a variety of bottle-based improvised incendiary weapons.
Due to the relative ease of production, they are frequently used by street criminals, protestors and non-professionally equipped fighters in riots, gang warfare and urban guerrilla warfare.
They are primarily intended to set targets ablaze rather than instantly obliterate them. When the quartet was arrested for these acts, they were initially charged with possessing weapons for purposes of sabotage. They were brought to court and remanded in custody.
Within the investigations, the Office of the Prosecutor-General decided to turn two of the accused persons into witnesses against the other two who were believed to be the main perpetrators. The Prosecutor-General, therefore, directed prosecutors to remove these two from remand so they could assist in prosecuting the other pair. It is this decision that did not sit well with the Commissioner-General of Police.
Assistant Commissioner Thulani Ncube, who is ordinarily based in Bulawayo, was summoned to come to Harare and handle the matter together with police from CID (Law and Order).
Tomana was called by CID (Law and Order) to explain his actions and was thereafter arrested. He spent a night at Rhodesville Police Station and on the afternoon of February 2, 2016, he was brought before Provincial Magistrate Vakayi Douglas Chikwekwe on charges of criminal abuse of office or, alternatively, obstruction of justice.
Asst COmm Ncube opposed Tomana’s bail bid. In giving evidence before the court where he caricatured himself and left people in stitches, he went shy of telling everyone that the police suspected Tomana had outside influence in making his decisions and thus needed more time to investigate this. He, therefore, revealed that there is more to the case than that which meets the eye. Tomana was subsequently released on US$1,000 bail and made to surrender his passport as well. He was further ordered to report three times a week at CID (Law and Order).
It is important to note that the Prosecutor-General could not have sanctioned his own prosecution and it, therefore, begs the question as to who exactly sanctioned it.
Normally, the State papers would have the stamp from his office, but they did not. Senior prosecutors stationed at Rotten Row recused themselves from the matter. So, who sanctioned the prosecution?
The only logical conclusion is that it was the police who authorised the prosecution. One could safely say the police took over Tomana’s constitutional functions and ordered a prosecution.
That this arrest and the placement of a Prosecutor-General on remand for an offence connected with the manner in which he performed his duties is illegal is unassailable. Many Zimbabweans may, however, not be moved by this arrest as we are used to a number of people being arrested by the police, only for them to be later released. One could, therefore, say there is nothing special about illegal arrests as it is the order of the day.
While one could be forgiven for such thinking, it is actually very wrong.
We should all be moved by the arrest of the Prosecutor-General.
I will not repeat the legal provisions that have been awash in the Press which make it crystal clear that the police actions are reprehensible and patently illegal. What is more important is what this arrest means to Zimbabwe as a constitutional democracy. In a constitutional democracy, the powers of the State are divided between the judiciary, legislature and executive.
Executive powers are also shared amongst various spheres of Government. A constitutional democracy is clearly distinct from its yesteryear monarch where all power of the state vested in the sovereign who was the king/queen.
The king’s word was law. This is no longer the case. In a constitutional democracy, we do not have kings or people who can claim to be doing illegal acts in the name of the king. In a constitutional democracy, no one can be ordered to perform an act that is unconstitutional.
The efficient chief prosecutor of a nation in terms of the Constitution must perform his duties without fear, favour or prejudice.
It is for this reason why the Constitution makes it abundantly clear that when the Prosecutor-General exercises his duties, he is under the control of no one. In essence, no one can tell him to prosecute or not to prosecute. He is independent and it is totally up to him.
To avoid a situation where this office is given to someone who can be manipulated, the Constitution provides that the qualifications of the PG should be the same qualifications for a Supreme Court Judge. There can, therefore, be no doubt that this is a serious job.
Supreme Court judges are the heads of one of the branches of the State – the Judiciary. The Prosecutor-General is placed by the Constitution at this level.
This is one of the reasons why this is not just another arrest.
The police are the least qualified people to be able to review the decisions of the Prosecutor-General. In fact, it is the police that are answerable to the prosecution and not the other way round.
The prosecutor has a right to reject to prosecute a docket; it is not for the police to insist upon a prosecution at all costs.
The domain of prosecution is exclusive. Even the courts seldom enter this terrain, as doing so will be blurring constitutional boundaries.
Section 259(11) of the Constitution actually provides that the Commissioner-General of Police must comply with the directions of the Prosecutor-General. There is no provision in the Constitution allowing the Commissioner-General of Police to review the Prosecutor-General’s decisions.
It is only the courts that have the powers to review decisions from any authority and determine whether such decision was made in accordance with the Constitution and the law. If it has not, the courts will order an appropriate remedy.
It, therefore, becomes worrisome when the police who are supposed to be the vanguards of the law are its chief perpetrators. In my perspective, these actions are not sudden. Zimbabwean police can be a law unto themselves. I am currently acting on behalf of one Norbert Mangena who was shot by police in a case of mistaken identity. He was subsequently arrested – while in hospital – for an offence he had totally no idea about. He was lucky to survive. In spite of complaints at Police General Headquarters, none of the police officers who shot at him were charged, and the police, as an institution, remain mum on the identity of these assailants.
Some will say the now embattled Prosecutor-General had it coming.
He was directed by the courts to issue certificates of private prosecution and refused to do so, only to comply when he was threatened with imprisonment and for his right of audience in the courts to be revoked. He also insisted on appeal against Beatrice Mtetwa, which insistence was described by the presiding judge as persecution and not prosecution.
The Office of the Prosecutor-General is not a fiefdom. It must be run according to the law. Where an incumbent abuses the office, the procedure is clearly laid out in the Constitution as to what can be done.
The answer is clearly not to arrest.
So, while those who have the powers may say the office was being abused, the manner in which the Prosecutor-General was arrested was an abuse of their offices and particularly the office of the Commissioner-General of Police.
The police have thus become so powerful an institution. They arrest whoever they please. When those that they arrest are released by the system, they also arrest those in the system that they do not agree with. When a State institution becomes so powerful that it disrespects other institutions this is not only a violation of the Constitution, but a threat to constitutional democracy.
In actual fact, such abuse of power is a threat to Zimbabwe’s national security.
At the time of Tomana’s arrest, I had occasion to speak to some of the police officers involved in the investigation of the alleged saboteurs. As the charge had been amplified to treason, I queried whether they were not killing flies with a bazooka, so to speak, considering that no treason could be committed with a Molotov cocktail. Their response was that organisations such as Boko Haram were formed by people who start small.
Thereafter, they receive funding to carry out more serious operations and eventually grow into the current Al Qaeda and Isis. Saboteurs of whatever nature had to, therefore, be nipped in the bud. I appreciate the logic. Threats to national security do not start with nuclear bombs; they grow from the Molotov cocktails.
Using this logic, I realised that, if today the police have the audacity to arrest a sitting Prosecutor-General because they are not satisfied with his decision pertaining to how he has handled their docket, what will stop them from arresting a judge of the High Court when he/she has granted bail to someone they consider unfit for bail?
What will then stop the police from arresting a Judge of Appeal or more so, the Chief Justice himself, when they are not satisfied with the decision of the court?
If the Minister of Justice were to, say, recommend that a convicted criminal be pardoned by the President, could he also not be arrested for attempting to defeat the ends of justice?
Then before we know it, for one reason or another, other heads of other law enforcement officials are also being arrested. The Office of the Prosecutor-General does not possess any guns, but another office which does may not take it lightly when its leader is illegally arrested.
The powers of arrest that have been entrusted to the police are now limitless and can be exercised on just about anybody. This is why the arrest of the Prosecutor-General should worry all and sundry.
We have nurtured our police to be all powerful and supreme; they are now coming of age. They are tired of hunting rabbits and gazelle. They have now tasted the blood of a buffalo. They could soon be trying the blood of crocodiles and then the elephants. We need to stop this.
While we enjoy our totems, the State does not function on the laws of the jungle that favour the fittest.
The State functions with the Constitution as the supreme law. Those individuals holding constitutional offices have sworn to uphold and defend the Constitution.
They should do so and not subvert it.
Let our drought be a purely climatic drought. It is not a drought of ideas.
It is not a drought of principles, principles established by nationalists as those that a nation State such as ours should be based upon. Our faith in the fulfilment of the ideals espoused by our new Constitution has not been impoverished.
The drought has not dried our resolve to implement the ideals of the liberation struggle. The water table that succours our conscience to distinguish right from wrong is constantly replenished.
Malnourishment has not taken away our vision for the future. Most importantly, the hot sun and heat waves have not baked our morality.
So, let this drought not be a drought of morals!
◆ Tazorora TG Musarurwa is a lawyer based in Harare, and wrote this article for The Sunday Mail.
