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Kereke, Tomana and the cost of political patronage

July 12, 2016

On 11 July 2016, Dr Munyaradzi Kereke, the ZANU PF MP for Bikita West constituency, was found guilty of raping a minor child, who was also a relative. It was the conclusion of a long-drawn legal saga which started in 2010 when the child was raped by Kereke.

 

The case is remarkable in a number of ways;

 

The first is that the conviction came after a private prosecution launched by the rape survivor’s family after refusal and much resistance by the state prosecuting authorities.

 

The second is that Kereke’s conviction has implications on the fate of the country’s Prosecutor-General, Mr Tomana, who is already facing dismissal.

 

The third aspect is that Kereke is an MP of the ruling party, ZANU PF and this is a rare case in which one of the political elites has been tried and convicted by a court of law. There are interesting political dimensions to the case, the implications of which require further analysis.

 

Finally, while in one sense, the case represents a triumph of the rule of law, this must be qualified in light of the politics at play.

 

Private prosecution

The case is significant in that it represents a high profile success of private prosecution in a country where this facility is very rarely used. As in most countries, criminal prosecutions are handled by the state, through the prosecution authorities. In Zimbabwe, this function is constitutionally vested in the National Prosecuting Authority, headed by a Prosecutor General (PG). Prior to the new Constitution adopted in 2013, this function was exercised by the Attorney General (AG). Tomana, who was the AG before the new Constitution, became the PG under the new constitutional order.

 

Zimbabwean law allows private prosecutions where a party wishes to pursue a criminal case in the event that the PG declines to prosecute. Where a PG declines to prosecute, he is required to issue a certificate nolle prosecui a Latin term referring to the prosecution’s unwillingness to pursue prosecution proceedings in a matter. Once the PG has issued this certificate, the aggrieved party can launch a private prosecution if they wish to do so. They would have to do so using their own resources.

 

In this matter, Tomana declined to prosecute Kereke for the rape of the minor child. However, for a long time, Tomana refused to issue the certificate nolle prosequi, as required by the law. Ably assisted by their lawyer, Mr Charles Warara, the family took the matter to the High Court, where the judge ordered Tomana to issue the certificate. However, Tomana disregarded the order and instead, launched a constitutional application to the Constitutional Court, where he sought to have the law compelling him to issue a certificate to open the way for private prosecutions declared unconstitutional. He argued that it interfered with his discretion. The Constitutional Court dismissed his case and instead, found him to be in contempt of court for refusing to issue the certificate nolle prosequi as previously directed. The Court slapped him with a 30-day jail term but it was suspended for 10 days during which he was supposed to comply or face jail. Tomana complied and that opened the path for the rape survivor’s family to commence private prosecution proceedings.

 

These proceedings ended on 11 July 2016 when Kereke was convicted and sentenced to 14 years in jail (4 were suspended). Thus ended a case which appeared to have been stifled by the Tomana before it had even begun. It is a remarkable achievement for the family and their lawyer who were persistent and resilient in the face of many challenges thrown in their path to justice. But more importantly, it was a triumph of justice for the minor child who was raped by a man who should have been protecting him.

 

The success of the private prosecution gives hope to many others who find themselves stuck when the state prosecution authorities refuse to prosecute cases. This case is an embarrassment to the state given its unreasonable refusal to prosecute. If anything, it is a case where the Prosecutor General would tender his resignation in embarrassment. The power to prosecute has been abused by prosecution authorities and is a rent-seeking opportunity by those who make prosecution decisions. They can extract rents through bribes from those seeking to avoid prosecution, but this leaves victims and survivors of crime stuck and seemingly without recourse. However, this latest success will give them some hope. If the state does not want to prosecute an offender, if the crime victim can afford it, they should be allowed to prosecute privately. This is consistent with the right to equal protection of law guaranteed by the Constitution.

 

Nevertheless, this must be qualified by the fact that private prosecutions are expensive. One has to be able to afford an experienced lawyer and investigators to gather evidence which is admissible in a court of law. This costs money and many people might not be able to afford it. This is why although the Kereke case is an important precedent, its impact might still be limited for many other victims and survivors of crime.

 

Implications for Tomana

The success of the private prosecution piles pressure on Mr Tomana who is already facing dismissal charges and is being investigated by a special tribunal set up by the President following recommendations by the Judicial Service Commission that he must be removed from office. A number of charges relating to corruption and incompetence have been levelled against him. His refusal to prosecute in this matter has been exposed by the success of the private prosecution. Why did he refuse to prosecute a case which a private prosecutor has successfully prosecuted? Did he have good reason to decline prosecution or was he protecting Mr Kereke? Did he unlawfully use his position as PG to block the prosecution of Mr Kereke? Could he have been obstructing the course of justice or criminally abusing his office?

 

Certainly these and other questions over his conduct will now be raised in light of the success of the private prosecution and the background of his strenuous efforts to block it in the first place. The President and the Judicial Service Commission should recommend a thorough independent review of cases in which Tomana declined to prosecute during his tenure at AG and PG. It is quite possible that he might face additional criminal charges relating to obstructing the course of justice and/or criminal abuse of office, in this matter and other matters which might be unearthed though that investigation. It is unlikely the Kereke case was a one-off.

 

It should also be mentioned that Tomana has previously demonstrated an unhealthy attitude towards child rape and child marriage. Last year, he was widely reported as having made comments which justified lenient sentences for criminals who had sexual relations with minor children and even recommended that child marriage was justifiable due to socio-economic conditions. They were highly irresponsible comments coming from the head of the National Prosecuting Authority charged with the responsibility of protecting children and prosecuting rapists and other sex offenders. But on analysis his comments were entirely consistent with the attitude that he had taken to the rape allegations against Mr Kereke, whom he seemed to be protecting from prosecution.

 

Succession and the failure of political patronage

While the Kereke matter is a triumph of justice and suggests also a success of the rule of law given that this is a case where a member of the political elite has been convicted in a court of law, it is also important not to get carried away and to consider its political dimensions. Kereke has long been regarded as belonging to one of the factions vying to succeed President Mugabe in the event of vacancy. He has been said to be in a faction backing Vice President Emmerson Mnangagwa, a group called Lacoste or the Ngwena faction, which is competing with the G40, said to be backed by the Grace Mugabe, the President’s wife. Mugabe castigated these factions a few months ago, but they have refused to go away.

 

Kereke should have lost his parliamentary seat back in 2014, when he was re-admitted into ZANU PF. He had contested the 2013 elections as an independent, after he refused his party’s order to give way to another candidate. When a faction of ZANU PF which had tried to block him in the 2013 elections was expelled from ZANU PF, Kereke was quickly readmitted into ZANU PF. The Constitution prohibits an MP from crossing the floor and retaining his seat. This is the case whether the MP is moving from a party or from being an independent, into another party. There has to be a by-election when that happens. However, this provision was blatantly disregarded when Kereke re-joined ZANU PF in 2014, thanks to political protection from his faction which was then in the ascendancy.

 

Tomana is also said to be in the Lacoste faction. It is said that Tomana’s persistent refusal to prosecute Kereke, despite the evidence, was because of political patronage. Critics add that Tomana’s own survival as the top government lawyer since he was appointed 8 years ago, was due largely to factional loyalties and protection. Indeed when Grace Mugabe publicly criticised Tomana after his reckless statements on child rape and child marriage last year, most observers thought that was the end of his career. However, a few days later, Mnangagwa stated that Tomana would not be going anywhere, a statement which was seen as signalling the political protection of Tomana by the god father of the Lacoste faction.

 

Now however, both Tomana and Kereke have been exposed. This represents two fairly important allies of Mnangagwa falling by the wayside. This also comes soon after Chris Mutsvangwa, one of the most vocal backers of Mnangagwa was expelled from ZANU PF. The dramatic fall of Kereke and Tomana’s legal predicament represents a further serious setback for Mnangagwa and his presidential ambitions. One by one, his key allies are falling, and worryingly for remaining allies, he does not seem to have the power or courage to protect them. The risk, of course, is that if he tries to protect them, he will expose himself, which is precisely what his rivals would like him to do. Yet inaction also means party allies or those sitting on the fence will start developing cold feet and may even jump to the rival faction.

 

Conclusion

Meanwhile, Kereke has spent his first night in jail. He will probably appeal but appeal courts are notoriously wary of interfering with factual findings of trial courts. Besides, like Gumbura, another high profile convicted rapist before him, he might find it impossible to get bail pending his appeal. He was a vocal character during his time in the limelight but now he has to get used to very unfamiliar and less glamorous surroundings at Chikurubi Maximum Security Prison, as a guest of the state. Tomana is facing a serious problem and with criminal charges also piling up, he too might find himself joining his old colleague.

 

Does all this represent a triumph of the rule of law? In one sense, rule of law advocates will be pleased to see a rare instance in which political elites enjoying political patronage are being brought to book. But in another sense, looking at the bigger picture and the politics at play, it is hard to escape the conclusion that both Tomana and Kereke’s luck ran out the moment it became clear they were in the wrong political faction of the ruling party. Once again, between law and politics, it is politics that wins, although in this case, it appears as if the law has succeeded. The truth is if these men still had political protection, they would still be strutting on the stage, with a great amount of arrogance.

However, there is a lesson here, too for ZANU PF political elites, others who support them and those who try so hard to be on the gravy train: The system can only protect you for so long, but eventually, when you no longer serve a useful purpose, or you have fallen out of favour, it will simply discard you. If you fall to the predators, the system will not look back.

 

waMagaisa

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