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Tendai Rupapa Harare Bureau
PROSECUTOR General Johannes Tomana yesterday challenged his placement on remand arguing his arrest was unconstitutional. He said prosecutions were conducted under his authority and in this case he had not instituted the criminalprocess.

“Prosecutions are conducted in my name and under my authority. I now happen to be an accused person under a criminal process which I have not instituted and which is not under my name and authority. That is obviously a misnomer. The prosecution itself was invalid as it was not authorised by me or by any of the decision makers in my office. It was essentially a prosecution by the police as it was instigated under their authority,” he said.

Tomana warned those behind his arrest to “stop it”.

“My placement on remand is highly irregular. It must be nullified retrospectively. Every minute that I remain on remand the Constitution suffers an unwarranted violation. That must be brought to an end. Those behind this process must STOP IT!!!” said Tomana, in an affidavit submitted in court yesterday in support of his application.

Tomana is being represented by Advocate Thabani Mpofu.

He said the allegations levelled against him do not constitute a criminal offence.

“My arrest, having been unlawful, no valid placement on remand could ensue thereon. These allegations do not constitute a criminal offence. There is therefore no lawful basis upon which I have been placed and have remained on remand.”

He said his arrest was a violation of constitutional provisions guaranteeing his office’s independence and protection from intimidation in the exercise and discharge of his functions.

Tomana said it does require a “rocket scientist to discern that the arrest and detention was patently illegal and a most grave violation” of his powers, duties and functions that are provided for in section 12 of the National Prosecuting Authority Act {Chapter 7:20}.

“It is an elementary principle of law and practice that I am entitled, as a matter of unfettered and unrestrained discretion, to choose whom to prosecute and whom to utilise as a State witness. None can interfere with the manner in which I discharge my duties, functions and exercise my powers.

“This interference with my office is a blatant and shameless violation of Constitutional provisions which guarantee my independence. How can I function independently, fearlessly and impartially when the police are free to arrest me for discharging a clear-cut prosecutorial function,” Tomana said.

He said he could not be pressured into making a decision by anyone as the responsibility for the decision to prosecute or not to prosecute rests with him.

“I wonder who authorised the preference of these particular charges…..,” he said.

The prosecutor Timothy Makoni is expected to respond to the application today before provincial magistrate Vakayi Chikwekwe.

Tomana is facing criminal abuse of duty as a public officer or alternatively defeating or obstructing the course of justice charges after he allegedly ordered the release of Silas Pfupa and Solomon Makumbe suspected of trying to petrol-bomb President Robert Mugabe and the First Lady’s Alpha Omega Dairy plant in Mazowe.

Tomana reportedly directed the withdrawal of charges before plea against Makumbe and Pfupa and unilaterally suggested that they be treated as witnesses.

The prosecutor-general is out on $1,000 bail.