Opinion / Columnist
Tomana has a right to refuse prosecuting legislators - legal gurus
25 Mar 2012 at 15:53hrs | Views
ATTORNEY-General Mr Johannes Tomana has a right to refuse prosecuting legislators accused of abusing the Constituency Development Fund if the Zimbabwe Anti-Corruption Commission defies his orders, legal experts have said.
They said the AG's office was the sole prosecuting authority in Zimbabwe.
Mr Terence Hussein of Hussein and Ranchhod law firm, yesterday said if the AG declined to prosecute, it would be the end of the matter.
"In terms of the Constitution, only the AG is the prosecuting authority, no other authority has the power to prosecute anybody, the final decision whether to prosecute or not rests with the AG," Mr Hussein said.
"Even if the Zimbabwe Anti-Corruption Commission recommends to the AG to prosecute, he still has the right to decide whether to prosecute or not to.
"If he refuses to prosecute then that is the end of the matter."
Alternatively, Mr Hussein said, private prosecution could be considered though it was not common and had not been successful in Zimbabwe. He, however, said the AG had no jurisdiction to guide the Commission on how to investigate. The Zimbabwean Constitution, Mr Hussein said, did not provide for involvement of the AG in investigations as was the case with the United States constitution.
"The AG can only advise, I think 'order' would be a wrong word to use because the commission as provided for by the law has the mandate to investigate without interference," he said.
Another legal expert said if the AG expressed disinterest in prosecuting a matter, there was no need to go ahead and arrest the suspects.
The law, the expert said, obliged the arresting officials to present the suspect within 48 hours in a court of law.
"It is not the arresting officer who presents the accused person but the AG. The arresting official becomes merely a witness. It is therefore futile for the commission to say they will arrest anyway. That drama is unnecessary and ill-informed. The Zimbabwe Anti-Corruption Act clearly provides that all actions of the commission must be taken with the permission of the AG. The law therefore subjects the commission to the AG and they can't run away from a lawful authority," said the source.
He said it was unnecessary for the commission to engage in a public fight with the AG. The success of the commission, the source said, could only be achieved by successful prosecution, which secured conviction than just "effecting directionless arrests".
He said the Constitution did not provide for private prosecution in such cases.
"If the AG refuses to prosecute, the arresting officers will have to release the suspect within 48 hours as provided for by the law. After the release, the arresting officers can be sued in their personal capacities.
"The AG is not obliged to prosecute even if there is overwhelming evidence against a suspect," he said.
However, Professors Welshman Ncube and Lovemore Madhuku had a different interpretation. They said the Constitution provided for private prosecution if the AG refused to prosecute.
"The mandates of the two bodies are very clear. The Zimbabwe Anti-Corruption Commission has to execute its mandate free from interference. Nobody can give them directions at all.
"The commission is at liberty to investigate any forms of corruption and the AG can't instruct them in anyway. He only has powers to instruct the police through the Commissioner-General to investigate but can't do that with the Commission, I think the AG knows that.
"Equally the AG has unfettered discretion to prosecute or not to prosecute. The commission hands over papers to the AG and he is expected to make a professional judgment on whether to prosecute or not," Prof Ncube said.
He said, the AG had no authority to call for the conclusion of the audit in all constituencies for him to prosecute.
The AG, Prof Ncube, said should treat each case on its merit.
Prof Madhuku concurred saying the two bodies were independent from interference even from each other.
He said they needed each other in the execution of their duties.
"The AG is only allowed by the Constitution to ask the Commissioner-General of Police to investigate certain offences. Outside that the AG has to sit in his office and receive requests from the various investigation authorities. That is when he can decide whether to prosecute or not to," Prof Madhuku said.
He said, if the AG declined to prosecute, the Constitution provided for private prosecution. Prof Madhuku said the AG was required by the law to issue a document called "nolle proseque". He said the document would allow for the aggrieved to prosecute.
"The AG has to know that he is not the Alpha and Omega of prosecution. He has to issue that document indicating that he has refused to prosecute so that the one with sufficient interest in the matter can prosecute.
"The recent case of private prosecution in Zimbabwe was in 1987 in the case Sam Levy versus Benatur, where Sam Levy had obtained a peace order against a man he didn't want his daughter to have an affair with.
"When he approached the court, the AG declined to prosecute and it was left to private prosecution. Sam Levy, however, lost the case when it was discovered that the daughter was 18-years-old," Prof Madhuku said.
Mr Sternford Moyo of Scanlen and Holderness said the law envisaged a collaborative relationship involving the police, the Zimbabwe Anti-Corruption Commission and the AG's Office.
"The law was formulated without any competition for power in mind. The primary power to investigate suspects is vested in the Police and the Zimbabwe Anti-Corruption Commission. In the exercise of its investigative powers, the Zimbabwe Anti-Corruption Commission operates concurrently with the police except in circumstances where urgency or other good cause demand that it acts separately from the police.
"The primary power to prosecute is vested in the Attorney-General. In the exercise of his prosecutorial powers, the Attorney-General is not subject to direction or control by any person. Where the Attorney-General declines to prosecute any matter, an aggrieved person can obtain secondary power to prosecute by obtaining from the Attorney-General a certificate that he will not prosecute.
"The certificate paves the way for a private prosecution," Mr Moyo said.
He said the AG was empowered by the law to intervene when there is a conflict between the police and the Zimbabwe Anti-Corruption Commission.
"The Attorney-General has intervention powers aimed at removing the conflict. In circumstances where the Attorney-General is of the view that a particular matter requires investigation, he has constitutional authority to direct the Commissioner General (Police) to investigate it. The law was not formulated with power competition in mind. It was formulated with a collaborative relationship among the three aimed at promoting and enhancing the fight against crime," he said.
Clerk of Parliament Mr Austin Zvoma yesterday said Parliament could not intervene in the dispute between the AG and ZACC.
"Neither Parliament, its Presiding Officers nor the Clerk can supervise those two bodies because they were established by the Constitution with clear mandates.
"Those offices must have a clear understanding of their roles and appreciate each other's role as well," Mr Zvoma said.
He said Parliament's Standing Rules and Orders Committee had not been consulted in the administration of the CDF thus they could not help in any way.
"Parliament was never involved in the conception, inception, administration and disbursement of the CDF. The SROC which is the policymaking body by Parliament was not involved. We have no role to play. We also don't understand if it was proper for the Treasury to give out cash through the Ministry of Constitutional Affairs instead of paying for services," he said.
Federation of Non Governmental Organisations president Mr Goodson Nguni said his body felt there had been selective arrests at the behest of the Ministry of Constitutional and Parliamentary Affairs.
He said this was a ploy by MDC-T to target their opponents while arrested MDC-T legislators were targeted because of tribal and factional politics within the party.
"We urge the Zimbabwe Anti-Corruption Commission not to be used and set up as a rival Police Force by MDC-T to arrest their political opponents in the MDC-T and other political parties," Mr Nguni said
They said the AG's office was the sole prosecuting authority in Zimbabwe.
Mr Terence Hussein of Hussein and Ranchhod law firm, yesterday said if the AG declined to prosecute, it would be the end of the matter.
"In terms of the Constitution, only the AG is the prosecuting authority, no other authority has the power to prosecute anybody, the final decision whether to prosecute or not rests with the AG," Mr Hussein said.
"Even if the Zimbabwe Anti-Corruption Commission recommends to the AG to prosecute, he still has the right to decide whether to prosecute or not to.
"If he refuses to prosecute then that is the end of the matter."
Alternatively, Mr Hussein said, private prosecution could be considered though it was not common and had not been successful in Zimbabwe. He, however, said the AG had no jurisdiction to guide the Commission on how to investigate. The Zimbabwean Constitution, Mr Hussein said, did not provide for involvement of the AG in investigations as was the case with the United States constitution.
"The AG can only advise, I think 'order' would be a wrong word to use because the commission as provided for by the law has the mandate to investigate without interference," he said.
Another legal expert said if the AG expressed disinterest in prosecuting a matter, there was no need to go ahead and arrest the suspects.
The law, the expert said, obliged the arresting officials to present the suspect within 48 hours in a court of law.
"It is not the arresting officer who presents the accused person but the AG. The arresting official becomes merely a witness. It is therefore futile for the commission to say they will arrest anyway. That drama is unnecessary and ill-informed. The Zimbabwe Anti-Corruption Act clearly provides that all actions of the commission must be taken with the permission of the AG. The law therefore subjects the commission to the AG and they can't run away from a lawful authority," said the source.
He said it was unnecessary for the commission to engage in a public fight with the AG. The success of the commission, the source said, could only be achieved by successful prosecution, which secured conviction than just "effecting directionless arrests".
He said the Constitution did not provide for private prosecution in such cases.
"If the AG refuses to prosecute, the arresting officers will have to release the suspect within 48 hours as provided for by the law. After the release, the arresting officers can be sued in their personal capacities.
"The AG is not obliged to prosecute even if there is overwhelming evidence against a suspect," he said.
However, Professors Welshman Ncube and Lovemore Madhuku had a different interpretation. They said the Constitution provided for private prosecution if the AG refused to prosecute.
"The mandates of the two bodies are very clear. The Zimbabwe Anti-Corruption Commission has to execute its mandate free from interference. Nobody can give them directions at all.
"The commission is at liberty to investigate any forms of corruption and the AG can't instruct them in anyway. He only has powers to instruct the police through the Commissioner-General to investigate but can't do that with the Commission, I think the AG knows that.
"Equally the AG has unfettered discretion to prosecute or not to prosecute. The commission hands over papers to the AG and he is expected to make a professional judgment on whether to prosecute or not," Prof Ncube said.
He said, the AG had no authority to call for the conclusion of the audit in all constituencies for him to prosecute.
The AG, Prof Ncube, said should treat each case on its merit.
He said they needed each other in the execution of their duties.
"The AG is only allowed by the Constitution to ask the Commissioner-General of Police to investigate certain offences. Outside that the AG has to sit in his office and receive requests from the various investigation authorities. That is when he can decide whether to prosecute or not to," Prof Madhuku said.
He said, if the AG declined to prosecute, the Constitution provided for private prosecution. Prof Madhuku said the AG was required by the law to issue a document called "nolle proseque". He said the document would allow for the aggrieved to prosecute.
"The AG has to know that he is not the Alpha and Omega of prosecution. He has to issue that document indicating that he has refused to prosecute so that the one with sufficient interest in the matter can prosecute.
"The recent case of private prosecution in Zimbabwe was in 1987 in the case Sam Levy versus Benatur, where Sam Levy had obtained a peace order against a man he didn't want his daughter to have an affair with.
"When he approached the court, the AG declined to prosecute and it was left to private prosecution. Sam Levy, however, lost the case when it was discovered that the daughter was 18-years-old," Prof Madhuku said.
Mr Sternford Moyo of Scanlen and Holderness said the law envisaged a collaborative relationship involving the police, the Zimbabwe Anti-Corruption Commission and the AG's Office.
"The law was formulated without any competition for power in mind. The primary power to investigate suspects is vested in the Police and the Zimbabwe Anti-Corruption Commission. In the exercise of its investigative powers, the Zimbabwe Anti-Corruption Commission operates concurrently with the police except in circumstances where urgency or other good cause demand that it acts separately from the police.
"The primary power to prosecute is vested in the Attorney-General. In the exercise of his prosecutorial powers, the Attorney-General is not subject to direction or control by any person. Where the Attorney-General declines to prosecute any matter, an aggrieved person can obtain secondary power to prosecute by obtaining from the Attorney-General a certificate that he will not prosecute.
"The certificate paves the way for a private prosecution," Mr Moyo said.
He said the AG was empowered by the law to intervene when there is a conflict between the police and the Zimbabwe Anti-Corruption Commission.
"The Attorney-General has intervention powers aimed at removing the conflict. In circumstances where the Attorney-General is of the view that a particular matter requires investigation, he has constitutional authority to direct the Commissioner General (Police) to investigate it. The law was not formulated with power competition in mind. It was formulated with a collaborative relationship among the three aimed at promoting and enhancing the fight against crime," he said.
Clerk of Parliament Mr Austin Zvoma yesterday said Parliament could not intervene in the dispute between the AG and ZACC.
"Neither Parliament, its Presiding Officers nor the Clerk can supervise those two bodies because they were established by the Constitution with clear mandates.
"Those offices must have a clear understanding of their roles and appreciate each other's role as well," Mr Zvoma said.
He said Parliament's Standing Rules and Orders Committee had not been consulted in the administration of the CDF thus they could not help in any way.
"Parliament was never involved in the conception, inception, administration and disbursement of the CDF. The SROC which is the policymaking body by Parliament was not involved. We have no role to play. We also don't understand if it was proper for the Treasury to give out cash through the Ministry of Constitutional Affairs instead of paying for services," he said.
Federation of Non Governmental Organisations president Mr Goodson Nguni said his body felt there had been selective arrests at the behest of the Ministry of Constitutional and Parliamentary Affairs.
He said this was a ploy by MDC-T to target their opponents while arrested MDC-T legislators were targeted because of tribal and factional politics within the party.
"We urge the Zimbabwe Anti-Corruption Commission not to be used and set up as a rival Police Force by MDC-T to arrest their political opponents in the MDC-T and other political parties," Mr Nguni said
Source - ND
All articles and letters published on Bulawayo24 have been independently written by members of Bulawayo24's community. The views of users published on Bulawayo24 are therefore their own and do not necessarily represent the views of Bulawayo24. Bulawayo24 editors also reserve the right to edit or delete any and all comments received.
