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The Legal Monitor - Issue 26
Zimbabwe Lawyers for Human Rights (ZLHR)
December 21, 2009

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Tomana greatest threat

A senior lawyer says Attorney General (AG) Johannes Tomana is the greatest threat to the administration of justice in the country and should be censured for his unparalleled persecution of human rights lawyers in the country.

Advocate Happias Zhou laid the blame on Tomana whilst making an application for refusal of remand for leading human rights and media lawyer and Zimbabwe Lawyers for Human Rights (ZLHR) member Mordecai Mahlangu last Thursday.

Mahlangu, a senior partner with Gill, Godlonton and Gerrans Legal Practitioners was arrested last month and charged with obstruction of justice after he allegedly wrote a letter to Tomana stating that his client Peter Michael Hitschmann would not give evidence in the ongoing trial of Deputy Agriculture Minister-Designate Roy Bennett because the information which the prosecution was relying upon was extracted through torture and had already been rejected by the High Court in his own trial.

Zhou, who in his application stated that Mahlangu was simply taking instructions from his client when he prepared an affidavit for Hitschmann, charged that Tomana must be censured for his actions in prosecuting the human rights lawyer.

"The AG seems to be the greatest threat now to the administration of justice and to the existence and independence of the legal profession. This court should censure the Office of the AG," said Zhou whose application was opposed by State prosecutor Edmore Nyazamba.

Magistrate Archie Wochiunga will on 13 January 2010 deliver his ruling on Mahlangu's application. Advocate Zhou becomes the latest senior legal practitioner to add his voice to the growing calls for an enquiry into the conduct and role of Tomana in persecuting human rights lawyers. In July, Masvingo Urban legislator and lawyer, Hon Tongai Matutu, asked the House of Assembly to investigate the AG's conduct in politically motivated and selective prosecutions of human rights activists, MP's and political activists. Matutu moved a motion for the establishment of a special select committee to investigate the possible abuse of office by Tomana.

In November, members of the Law Society of Zimbabwe (LSZ) signed a petition demanding that their representative council institute disciplinary proceedings against Tomana as a legal practitioner.

Recently, human rights lawyer Beatrice Mtetwa wrote to the LSZ asking the lawyers' regulatory body to investigate Tomana's conduct after senior prosecutor Andrew Kumire evaded serving his jail term when he was committed to prison by former Harare Magistrate Chiwoniso Mutongi during the dramatic trial of prominent human rights lawyer Alec Muchadehama.

Just last week Muchadehama criticised Tomana's Office and the police for maliciously prosecuting him on spurious contempt of court charges. Muchadehama, who was acquitted at the close of the State case by Bulawayo regional Magistrate Fadzai Mthombeni, accused the AG's Office of acting as an extension of the dreaded Central Intelligence Organisation (CIO) in prosecuting him.

Lawyers in private and public practice serve as Human Rights Defenders (HRDs), in that they are the critical and last line of defence in protecting and ensuring the fundamental rights and freedoms of litigants and those charged with criminal offences.

Through the course and scope of their work, lawyers aid citizens to realise their civil, political, social, economic and cultural rights. They are also a vital cog in the wheel of justice delivery, access to justice, and the enhancement of public confidence in the institutions which are constitutionally obligated to protect and promote human rights.

Despite these important roles, members of the legal profession are persistently under attackmost often by State actors or those acting with the knowledge and/or acquiescence of the State. Regrettably, this state of affairs has continued unabated, negatively impacting on the fundamental right of an accused 'to be represented by a lawyer of one's choice', and other rights enunciated in the African Charter on Human and Peoples' Rights, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the United Nations Basic Principles on the Role of Lawyers, and the African Union Guidelines on the Right to Fair Trial and Legal Assistance in Africa.

Although lawyers in private practice have been victimised and harassed after being identified with the causes of their clients it is worrying that no such prosecution has resulted in a conviction, reinforcing the perception that lawyers are being persecuted rather than legitimately prosecuted.

Not only has this negatively impacted their own rights, but it has also adversely affected the fair trial rights of their clients, including access to legal representatives of their choice on demand.

Not spared are lawyers in the public sector and judicial support staff who have attempted to exhibit independence and professionalism in the execution of their duties as they have also been harassed-both by the police and their own superiors in the Office of the AG.

They are increasingly being arbitrarily charged with criminal offences such as 'committing criminal abuse of duty as a public officer', which has had a chilling effect on their ability to execute their professional duties without fear or favour.

In addition, State actors, working in collaboration with non-State actors, continue to undermine and denigrate the efforts of lawyers, and habitually defy court orders, especially those which are intended to promote and protect human rights. This not only tears at the very fabric of the Rule of Law, but also makes a mockery of the principle of separation of powers and impairs the integrity of the justice delivery system, and particularly the independence of and respect for the Judiciary.

Last week ZLHR petitioned Parliament to take immediate steps to deal proactively with offensive legislative provisions and malicious administrative practices implemented by the police and the Office of the AG to undermine the work of the legal profession and endanger the integrity, independence and safety of lawyers in public and private practice.

The rights group wants Parliament to guarantee the independence and security of the legal profession in any new Constitution and corresponding legislation.

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