Many of Zimbabwe's top lawyers say the country's 2008 political agreement, the foundation of the inclusive government, will not achieve its goal of producing undisputed elections, unless the present attorney general is replaced with a professional legal officer.
Two human rights defenders were arrested this week while managing a workshop in southern Zimbabwe on the evils of torture. Peaceful women protesters were detained in the city of Bulawayo days earlier.
On Tuesday, 27 mourners arrested at a funeral of a Movement for Democratic Change official were released on bail after five days in filthy cells.
Every week, MDC officials and supporters are detained. Only a few of those arrested proceed to trial, and court records show that only one or two of the thousands arrested have been convicted of charges for which they were detained.
Many analysts blame partisan police for the never-ending arrests of people opposed to President Robert Mugabe.
Former Zimbabwe Law Society president Beatrice Mtetwa is the winner of many international awards for her human rights work. She says at the core of partisan policing is the office of Attorney General Johannes Tomana, who acknowledges he is a long-standing member of Mugabe's ZANU-PF party.
“For as long as we have the current attorney general, Johannes Tomana, there can be no question that the criminal justice system cannot function properly, because the abuses where the law is just used as a political tool against perceived political opponents is continuing, and nobody is in doubt that the arrests for instance of senior MDC personnel have very little to do with the law,” she said.
Tomana was appointed after the political agreement was signed in 2008 by leaders of the two MDC parties and Mugabe.
The agreement says Morgan Tsvangirai, the leader of the large MDC party and now prime minister in the inclusive government, must be consulted before appointments of any senior public servants. He was not consulted for the Tomana appointment.
Mtetwa says Tomana is motivated to prosecute people on behalf of his political masters.
“It is Mr. Tomana doing ZANU-PF’s bidding to ensure the MDC is decimated or is harassed to an extent they are concentrating more on defending themselves than on doing their work,” said Mtetwa.
Mtetwa says the police give orders to the attorney general’s office. “The attorney general’s office is run by the police; they literally do what the police tell them to do. If the police say, 'Oppose bail,' they oppose bail, and that is not how the AG’s office is supposed to function. For as long as Tomana is there we will continue to have a partisan police force,” she said.
Mtetwa and several other senior Zimbabwean lawyers say the country urgently needs an impartial attorney general.
“If we had a professional, independent, impartial attorney general, the police would not abuse the law the way they do because the attorney general would be able to step in and refuse to deal with any cases where arrests have been done for the wrong reasons without any cases against the suspect,” said Mtetwa.
There are ongoing negotiations between the two MDC parties and ZANU-PF about implementation of the political agreement.
Mtetwa says she does not know why the appointment of the attorney general is not given prominence because without a professional in place, free and fair elections will not be possible.
“I am actually surprised that the two MDC’s are not as vocal as they ought to be, because for me that is one of the fundamental areas. For as long as the attorney general remains being the current incumbent, we are not going to see this country going back to any semblance of the rule of law, we are not going to have independent, or free and fair elections,” she said.
Mtetwa says even if negotiators produce substantial electoral reforms before the next elections, there is a long tradition of cheating at the polls and Zimbabwe will need a professional attorney general to ensure electoral laws are obeyed.
Neither Tomana nor any officials from Mugabe’s ZANU-PF party was available for comment Thursday.