THE PROSECUTORIAL DILEMMA

Photo Credit: Justin Mutenda

The government of Zimbabwe recently announced its intention to ring fence members of the National Prosecuting Authority (NPA) in prosecutorial villages to ostensibly offer protection and curb corruption. Public prosecutors are under intense scrutiny due to claims of compromise and corruption. There are currently two public prosecutors in detention and another yet to be apprehended in connection with bail decisions in armed robbery cases. The constant claims of corruption and subversion of prosecutorial guidelines all evince systemic problems rooted in the 2013 Constitution. 

During the 2013 constitutional reform process, members of the MDC-T were keen to reform the office of Attorney General. As the officer responsible for public prosecutions, the Attorney General was an indispensable cog in the government’s persecution of opposition members. Not only were requests for prosecution of ZANU PF activists ignored, but the then Attorney General, Johannes Tomana, issued a directive for bail to be opposed in all political cases. This was, effectively, an order against members of the MDC-T. Prosecutors were also to appeal against any successful bail applications, which resulted in the suspension of bail orders. In this way, the right to bail was manipulated to ensure political opponents were detained without trial.

 

To remedy this malfeasance, the makers of the 2013 Constitution removed the prosecutorial authority from the office of Attorney General. The Prosecutor-General was established as an independent officer whose appointment and removal is similar to that of a judge. Whilst the Attorney General is appointed solely by the president, the Prosecutor-General is appointed after a public interview process and enjoys constitutional independence. Independence in prosecutorial decision-making is essential for the proper administration of justice. It shields the general public from excessive, unlawful and unconstitutional law enforcement whilst increasing the institutional checks on restrictions of liberty. This ensures that the police are the only body lacking institutional independence in the criminal justice value chain. Consequently, accused persons are assured that the decision to prosecute is made impartially and rationally.  This is consistent with prosecutors' supervisory role as provided in the United Nations Guidelines on the Role of Prosecutors. 

However, the independence granted to the Prosecutor-General is not diffuse. It does not extend to every member of the NPA. It is akin to granting judicial independence exclusively to the Chief Justice. Independence which is only secured for the apex official does little in protecting the general public from corruption, excessive policing or political interference. It facilitates elite cohesion through executive capture since a president need only appoint a pliant Prosecutor-General to secure the conformity of all NPA personnel. Independence centralized in the top officer is also amenable to corruption since it is only one officer, with name recognition, who would be the subject of bribery in all prosecutions. Diffuse independence would encumber such efforts and enable prosecutors to operate as shields against excessive law enforcement without fear of arrest for corruption or criminal abuse of office.  The overwhelming power granted to the Prosecutor-General probably explains the high turnover of incumbents, with three different officers (Johannes Tomana, Ray Goba, Kumbirai Hodzi) since the enactment of the Constitution in 2013. 

Restricting independence to the apex office has several other deleterious outcomes. It makes members of the NPA obedient servants of the Prosecutor-General as a consequence of constitutionally ordained docility. Obedience to instructions becomes the preferred trait via a militaristic approach which accounts for the proliferation of uniformed personnel in the office of public prosecutor (a practice only halted by a Constitutional Court ruling). This also restricts prospects for career advancement. Prosecution is an honoured and respected job in many established democracies. In the USA, it is so venerated that current Vice President, Kamala Harris, built her political career on her prosecutorial experience, under the moniker of the progressive prosecutor. Thus, prosecutorial choices not only reflect professional competence but ideological commitment to rule of law fundamentals. Zimbabwean prosecutors cannot make such choices. They are obligated to follow instructions, even when such instructions are in clear defiance of legal precepts. This stunts their professional development and career prospects since all key decisions are attributable to their principal. 

It is noteworthy that the Prosecutor-General does not have to appear in court to defend the decisions he requires his officers to make. It is individual members of the NPA who put their faces to high profile cases and suffer the personal, professional and reputational costs for decisions made by their superiors. In the very least, an officer must only defend a decision which they participated in reaching, more so when the decision has implications on fundamental freedoms. Some critics have openly questioned the professional competence of public prosecutors and harangued officers in the invidious position of following instructions which lack sufficient grounding in law. Further, this constitutional scheme grants the Prosecutor General plausible deniability. Even though members of the NPA are required to follow his instructions, none of these instructions are ever in writing.  A claim of refusal to follow instructions can always be made after the fact, without proof, leaving prosecutors vulnerable to arrest and detention no matter their conformity with superior orders. This vulnerability induces real fear and explains prosecutors’ refusal to be involved in such cases as the one against a member arrested for consenting to the release of Ignatius Chombo’s passport. 

According to the case of Moll vs Commissioner of Police, an arrest that is based solely on superior orders is unlawful. Courts have stated that the arresting officer has to be personally satisfied regarding the existence of reasonable suspicion for the commission of an offence. This standard should be applied to the NPA. It makes little sense that police officers are legally obligated to apply their minds before restricting liberty yet legal practitioners for the State are made to blindly follow superior orders. Since judicial officers independently apply their minds, and the arresting detail is required to do the same, prosecutors must act on individual opinions regarding the validity of prosecutions. The public safety implications of armed robbery cases justify the commonly held view that bail must be opposed in such matters. However, we must ascertain whether prosecutors have the latitude to make such decisions before we demand that they are held accountable.  

The decision to arrest a prosecutor, like that to detain a judge, is a grave infraction which must only be resorted to in exceptional circumstances. The frequency of such arrests is deplorable and requires that, in the very least, the decision to prosecute is attributable to the prosecutor concerned through the grant of individual independence. Prosecutors face the public and professional costs consequent to the decision to prosecute and since there cannot be taxation without representation, there can neither be accountability without responsibility. It is apparent that the constitutional separation of the Prosecutor-General from the Attorney General has not resulted in greater independence or impartiality in the decision to prosecute. It has consolidated power in an independent office which can issue directives akin to those delivered by Johannes Tomana. Consequently, the grant of bail continues to be used as a tool of repression, with individual prosecutors hung out to dry via a constitutional scheme which will not be remedied by their arrest, detention or accommodation in the vaunted prosecutorial villages.