A local daily paper reported last week that the Prosecutor-General, Johannes Tomana is crossing swords with the Judiciary.
Dzikamai Bere & Prosper Maguchu
The report was based on the case in which Tomana is challenging the order by the courts for him to issue a certificate indicating that he has no intention of prosecuting a particular case.
According to our law, only the Prosecutor-General can prosecute offenders. In doing this, the Constitution says that he is not subject to anyone’s direction. However, when the Prosecutor-General decides that he has no intention of prosecuting a certain case, he must issue a certificate to that effect. This is called nolle prosequi.
The effect of this certificate is that it allows private individuals to commence a prosecution against the alleged offender if they so wish, at their own cost.
For some background, the case in point here is against the influential Zanu PF legislator Munyaradzi Kereke, who is accused of raping a minor. Kereke has since been readmitted into Zanu PF after being expelled for disobeying his party’s orders.
The High Court, Supreme Court and Constitutional Court have all made an order for the Prosecutor-General to issue the said certificate. Tomana is bound to obey the courts and open a way for private prosecutions. Now he is making a constitutional challenge alleging that his independence is being interfered with.
Because of the new Constitution, our justice system is transforming. The Prosecutor-General’s National Prosecuting Authority (NPA) used to be the same office with the office of the Attorney-General. The separation gives some increased independence to the Prosecutor-General.
Now there is a history to the old office of the Attorney-General which the now Prosecutor-General used to occupy before the creation of his current office. The office carries a legacy of politically-motivated prosecutions as well as politically-motivated failure to prosecute legitimate criminals because of their political allegiance to the ruling elite.
Human rights organisations over time documented many cases of serious crimes against leading politicians and activists who the then Attorney-General refused to prosecute despite overwhelming evidence. These include cases against Joseph Chinotimba, Chief Kasekete, Biggie Chitoro, Joseph Mwale and Jabulani Sibanda.
Now Munyaradzi Kereke, a Zanu PF legislator joins the list.
If Tomana was to issue a certificate indicating that he has no intention of prosecuting these individuals, it is obvious that private actors like human rights organisations who have collected evidence against these individuals can initiate private prosecution. Now, why does Tomana have a problem with that?
To understand that we have to critique what independence the Prosecutor-General is clamouring for.
Tomana, a documented Zanu PF sympathiser, is relying heavily on what is called the Shawcross Principle. The principle that is attributed to a famous speech in 1951 by the then Attorney-General of United Kingdom, Hartley Shawcross, to the House of Commons is a hypothetical notion of independence which shaped the office of the Attorney-General.
The cornerstone of this general principle is that the Attorney-General’s decision to prosecute should be made by the Attorney-General alone, independent of other considerations.
Hartley, who himself was a chief prosecutor for the Nuremberg war crimes trials, devised a criteria that he felt should apply to a prosecution.
In his own words: “I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.
In order to inform himself, he may — although I do not think he is obliged to — consult with any of his colleagues in government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not.
On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be.
The responsibility for the eventual decision rests with the Attorney-General, and is not put under pressure by his colleagues in the matter.” This is the statement that has come to be known as the Shawcross Principles.
Suffice to say that these principles have been binding in all countries that have a parliamentray democracy such as the UK. However, in our system the Constitution is clear in Article 2 that declares Zimbabwe to be a constitutional democracy. The implication of this dichotomy is that in a system where the Constitution reigns supreme, power is vested in the superior courts to invalidate government actions on the basis of unconstitutionality.
Our courts have explained this position in a number of cases. Most notably in the case of Smith v Mutasa and Anor (1989) where the late Chief Justice Enock Dumbutshena elaborated: “The Constitution is the supreme law of the land.
It is true that Parliament is supreme in the legislative field assigned to it by the Constitution, but even then Parliament cannot step outside the bounds of authority prescribed to it by the Constitution.”
This position was reiterated again in the case of the Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association and Ors (1996) as follows: “We consider that this argument fails to take into account the fact that Zimbabwe, unlike Great Britain, is not a parliamentary democracy. It is a constitutional democracy. The centrepiece of our democracy is not a sovereign parliament but a supreme law [the Constitution.”
It is therefore surprising that Tomana is attempting to import a principle that is based in a parliamentary democracy into our legal system where it clearly does not apply.
But the argument goes further; the Prosecutor-General is not being forced to prosecute when he sees otherwise. He is simply asked to declare that he has no intention to prosecute. This declaration is important to other interested parties because it activates the right to commence private prosecution.
Now, Tomana should not cry foul that someone else will be prosecuted by someone else, unless he has an interest in protecting such other individual, which interest will be illegitimate, hence must be defeated. A prosecution is not a conviction but a quest for truth. The prosecuted person is given a chance to come before a court of law and answer to the allegations.
Evidence has to be brought before a competent court which makes a fair determination. The accused person remains innocent until proven guilty. These are normal justice processes based on principles we all believe in. What Tomana wants is the independence to declare even the worst of criminals “innocent” and that no one must touch them.
Unless the Prosecutor-General has the intention to promote impunity, and prevent victims of offences from coming to court with their information, he has no reason to refuse issuing the nolle prosequi.
Neither the law nor the justice principles are on his side.
Maybe only political groups who intend to hide from the law, and are assured that he will not prosecute them.
If so, then the independence he wishes to claim is thrown into question. By choosing to prosecute selectively, the Prosecutor-General has lost his independence to political loyalty. Affected persons have the right to act, where the office funded by their tax has failed them.
Dzikamai Bere & Prosper Maguchu write in their personal capacities.
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