The Office of the Prosecutor-General and Private Prosecutions

Derek Matyszak

JOHANNES Tomana, the Prosecutor-General, contends that his “constitutional independence and protection from control of anyone” means that he cannot be compelled to issue a nolle prosequi to anyone wanting to proceed with a private prosecution.

Tomana’s lawyers further claimed: “The responsibility for the eventual decision to prosecute or not to prosecute rests with the Prosecutor-General and he is not to be put under pressure by his colleagues in the matter.

Yet Tomana’s arguments in this regard are the very opposite of the truth. If the Prosecutor-General has declined to prosecute, all the certificate of nolle prosequi (“do not want to prosecute”) does is to require that this decision is put in writing. The certificate precisely recognises that the Prosecutor-General has the primary right and duty to undertake criminal prosecutions.

It is only if the Prosecutor-General waives that right that a private individual, personally affected by the crime, that is a complainant, may institute a criminal prosecution. The nolle prosequi protects the Prosecutor-General, as it is this document that assures a court allowing a private prosecution to proceed that the Prosecutor-General has waived his right to conduct the prosecution, and it is not being usurped by a private prosecutor.

More importantly, private prosecutions are an essential safeguard and checking mechanism against interference with the Prosecutor-General’s independence. The decision whether that State should prosecute or not, is entirely that of the Prosecutor-General and should be taken on the basis of the public interest and not political considerations, for example.

If a Prosecutor-General declines to prosecute on political grounds, but conceals this decision by an assertion that “there is insufficient evidence”, a private prosecution will expose the lie. If the private prosecution is successful, and the accused is found guilty by the court “beyond reasonable doubt”, the Prosecutor-General will be nonplussed when called upon to justify his original decision not to prosecute.

The possibility of such exposure afforded by private prosecutions thus helps mitigate the possibility that the Prosecutor-General will decline to prosecute on grounds which cannot be justified. Mr. Tomana has claimed that his decision not to prosecute Bikita West legislator Dr Munyaradzi Kereke is because there is insufficient evidence against him.

If the private prosecution for rape of a minor against Dr. Kereke succeeds and Kereke is found guilty beyond reasonable doubt, this would suggest that the decision not to prosecute was motivated by factors other than “insufficient evidence” and that political considerations were at play. The fact that Mr. Tomana has gone to extreme lengths to prevent the private prosecution, indicates that he is fearful of precisely this outcome.

Not only has Mr. Tomana violated several court orders to prevent the private prosecution of Dr. Kereke, he may well have been behind the clauses in the Criminal Procedure and Evidence Bill which seek to remove the right to a private prosecution. It was in all likelihood Mr. Tomana’s hope that this legislation would be in place before he appeared in court for contempt.

It is to the everlasting shame of Vice-President Mnangagwa and the ZANU PF legislators supporting the Bill, that they aided and abetted Mr. Tomana in this scheme and have sought to undermine a key pillar ensuring the independence of the Office of the Prosecutor-General – private prosecutions. Matters may not end with the instigation of a private prosecution against Dr. Kereke or the other potential accused in a parallel matter Jane Mutasa.

Once a private prosecution has started the Prosecutor-General has the right to take over the prosecution from the private prosecutor mid-stream. This allows the possibility of the trial being taken over by the Prosecutor-General, who then arranges for the prosecution to fail – for example by withdrawing the charges.

If this is done after plea the accused must be found “not guilty” and cannot again be charged. In this instance the law offers no further succour for the private prosecutor, who would be dependent on the fourth estate to highlight the outrageousness of such behaviour.



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