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PROMINENT human rights lawyer Beatrice Mtetwa has accused Prosecutor-General (PG), Johannes Tomana, of abusing his authority in order to hound her.
Mtetwa was, in 2013, acquitted on allegations of obstructing police officers conducting a search at the residence of then Prime Minister Morgan Tsvangirai’s director of research, Thabani Mpofu.
Tomana is now challenging the ruling before High Court Judge Justice Garainesu Mawadza.
Through his representative, Edmore Makoto, the PG asked Justice Mawadza to grant him leave to appeal as well as return the case to the Magistrates Court for retrial.
But Mtetwa, chairperson of the Zimbabwe Lawyers for Human Rights (ZLHR), told the court Friday that Tomana’s pursuit of her person was motivated by malice.
She said the appeal was another example of the abuse of criminal prosecution powers by the PG, adding the fresh assault on her by Tomana was intended to tie her up in court ad infinitum (in perpetuity).
Mtetwa urged Justice Mawadze to dismiss Tomana’s application which, she argued, had no prospects of success.
Justice Mawadze reserved his ruling.
On Thursday Tomana suffered a setback after his lawyer admitted the PG blundered in his bid to overturn Mtetwa’s acquittal.
Mtetwa had told Justice Mawadze that the PG had made school-boy blunders by citing the wrong legal provision adding that the bid to overturn her acquittal had not been filed within a reasonable period.
Tomana’s lawyer conceded the error.
“I have noted that Section 61 of the Act is a wrong citation, I do concede that the application ought to have been made in terms of Section 198 of the High Court Rules,” Makoto said.
“Having made that concession, it is my humble submission that the error is not a fatal error because the standards that apply in Section 61 are the same for Section 198.”
Mtetwa also argued the application was not properly before the court, given that prosecutor Tozivepi Mapfuwa, who deposed to an affidavit forming part of the PG’s application, was not privy to what had actually transpired during the trial as he was not part of the prosecution team.
“Every application has to be accompanied by an affidavit which must be from a person who is able to say they have personal knowledge of the facts,” she said.
“Mapfuwa does not say why he is entitled to make such an affidavit. He was not part of the prosecutorial team and there is no reason why he deposed to that affidavit.
“He says he based his knowledge through reading, but the record of proceedings does not tell about the demeanour of the witnesses and yet he says they were shaken.
“He cannot talk about the credibility of the witnesses; he is not a suitable person to depose to such an affidavit.”
Further, Mtetwa also said Mapfuwa’s founding affidavit was attested to by a member of the Zimbabwe Republic Police, whose officers had an interest in the matter.
She argued that affidavits must be attested to by Commissioners of Oaths, who are impartial and unbiased.
The delay in noting the application seeking leave to appeal, Mtetwa added, pointed to a lackadaisical approach that Tomana has, over the years, demonstrated on critical issues before the courts. source-newzimbabwe.
photo-Taking on Johannes Tomana … Beatrice Mtetwa (centre) leaves the High Court on Friday