When Munyaradzi Kereke, the Zanu (PF) Bikita West MP accused of raping an 11-year-old girl in 2009, called for the financial empowerment of the National Prosecuting Authority recently, his remarks re-ignited debate on his relationship with Johannes Tomana.
Tomana is now the prosecutor general, having served as the attorney general for several years, and the NPA falls under his office. Kereke recently accused treasury of neglecting the NPA, saying limited funding of the authority was driving corruption.
“In Zimbabwe, whilst there is a comprehensive legal framework and multiple institutions to deal with corruption, the corruption menace is fast engulfing the entire country because of the shocking neglect by the country’s treasury to fund the National Prosecuting Authority. As a result, corruption cases take ages to be completed at the courts, whilst the resultant cashless state of the NPA becomes fertile ground for prosecutors to become corrupt,” he said.
Kereke called on the government to create financial room for the NPA without delay. But he neglected to mention the rape case, in which he is the suspect, that has failed to take off since 2009.
Not only did the police fail to take the expected action against Kereke, then advisor to the former Reserve Bank of Zimbabwe (RBZ) governor, Gideon Gono; but Tomana, first as attorney general then prosecutor general, vehemently frustrated efforts to have Kereke prosecuted.
This position by Tomana, despite senior court orders compelling the state and his office to institute private prosecution, has set tongues wagging, with many observers wondering if he is protecting Kereke.
There is a string of legal processes and events that reveal his resistance to prosecute the legislator after earlier attempts to have Kereke arrested failed to bear fruit.
In January 2014, High Court judge Happias Zhou was determined that Kereke should answer to rape charges reported against him by the 11 year-old relative’s guardian, Francis Maramwidze who had filed an application, seeking an order compelling the MP’s prosecution.
Two months later, Tomana’s office insisted that the state would not prosecute Kereke over the rape allegations and urged the complainants to pursue a private prosecution. Sharon Fero from the prosecutor-general’s office said the police and the prosecution department had acted according to their mandates by declining to prosecute Kereke.
“First and second respondents (commissioner general of police and prosecutor-general) acted accordingly and in line with their constitutional mandates,” Fero said, adding that the two institutions were independent bodies.
She said the prosecutor-general was of the view that there was no basis to prosecute Kereke, adding that the complainant could formally make an application for private prosecution. In May of the same year, the victim’s relatives were given hope when the High Court okayed the private prosecution of Kereke on charges of rape.
The High Court proceeded to order Tomana to issue a private prosecution certificate. A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state. This happens usually after the state prosecutor refuses to proceed with the case for any reason, including want of evidence.
In spite of this order, Tomana’s office did not act, with Kereke subsequently approaching the Supreme Court to stop the private prosecution. The Supreme Court concurred with the High Court and dismissed Kereke’s application, yet Tomana’s office, again, did not move an inch to ensure that the politician-cum-businessman was tried for the alleged rape.
Supreme Court judges Elizabeth Gwaunza, Bharat Patel and Anne-Marie Gowora ruled that Kereke had no basis to file an appeal, since he was not part of the proceedings when the matter was heard at the High Court. Gwaunza said there was no court order joining the legislator to the proceedings.
Patel on the other hand said Kereke was supposed to first appear before the High Court to be joined as a part to the proceedings, before appealing against the court’s decision. There was an outcry from gender activists, but not loud enough to move Tomana.
In one of the letters dated December 4, 2014, the lawyer representing the girl’s guardian, Charles Warara, accused Tomana of buying time through court applications. “We wish to put it on record that we know you are buying time and we are not prepared to have another waste of time like you did before we went to court last year. We shall proceed without further delay as earlier threatened to seek an order for contempt of court against you,” he said.
Contempt of court
In January this year, Maramwidze again approached the High Court seeking an order for contempt of court against Tomana for refusing to issue a certificate to prosecute Kereke, but the matter is yet to be finalised.
“Despite several letters written specifically to the respondent requesting him to avail this certificate, respondent has remained adamant giving strange reasons for delays that have been incurred in prosecuting the case,” said Maramwidze.
“In view of all this, it is evident that the respondent does not want to comply with this court’s order. Respondent is fully wilfully refusing to oblige. Reasons advanced for non-compliance are not cogent and in the premises I seek an order of contempt of court against respondent in his personal capacity since he has effectively refused to comply with a court order,” he added. Interestingly, Tomana was recently in the eye of a storm when he remarked that girls just getting into their teens could consent to sex. This provoked a backlash from gender activists who have linked his remarks to his resistance to prosecute Kereke. – The Zimbabwean