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Catch and release has the prosecutor general failed the fairness test in Zimbabwe

07 Apr 2021 at 15:29hrs | Views
Zimbabwe legal system bleeds and limps and trudge on as it staggers towards shame and doom. The people of Zimbabwe have always pointed blood-dripping fingers in the direction of the legal system. The bloody finger, strips off the little confidence people and the international world has with the Zimbabwean legal system.

The Constitution of Zimbabwe is the Supreme Law of the country and it is the parent act of any other Legislation.

When a crime is committed in Zimbabwe the hands of criminal justice are moved by the prosecution Authority which is a creation of the constitution of Zimbabwe section 258 to section 263.

Almost all prosecutions in Zimbabwe are conducted by officers of the National Prosecuting Authority on behalf of State (i.e. the Government).  Such prosecutions are sometimes called "prosecutions at the public instance".  Section 263 envisages an Act of Parliament conferring prosecuting powers on other bodies, but to date no such Act has done so. All public prosecutions are instituted in the name of the State to that end it is difficult to separate the prosecution and the state.

In terms of section 258 of the Constitution, the National Prosecuting Authority, headed by the Prosecutor-General, is responsible for instituting and undertaking criminal prosecutions on behalf of the State. 
 
The Criminal Procedure and Evidence Act elaborates on the functions of prosecutors.  Under the Act, the Prosecutor-General may:
delegate his functions to any public prosecutor or legal practitioner;
stop prosecutions (but probably not private prosecutions), in which event the accused person is entitled to an acquittal if he has already pleaded, but not if he has not pleaded; issue a warrant ordering the liberation from custody of a person whom he has decided not to prosecute.

So the prosecutor General is mandated by law to exercise due process in prosecuting any criminal case. Due process, is a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights. The doctrine of due process started as early as 1215 in England in the royal promise that "No freeman shall be taken or (and) imprisoned or disseised or exiled or in any way destroyed…except by the legal judgment of his peers or (and) by the law of the land." In subsequent English statutes, the references to "the legal judgment of his peers" and "laws of the land" are treated as substantially synonymous with due process of law.
 
In America this doctrine was adopted in 1791, in the twelfth amendment which provides that "No person shall…be deprived of life, liberty, or property, without due process of law."

So Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and from it. This then clearly means that Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters. It must apply to every person rich or poor without bias or influence.

In Zimbabwe, individuals expect that the rights enshrined in their constitution will be applied to them fairly. This expectation - of due process - outlines the relationship individuals expect to have with their local, and national government, specifically, that the rights of the individual will not be violated.

Due process provides a necessary check on the exercise of state power over its citizens essential to the citizen–state relationship. It is a central tenet of political theory that the state's authority to criminalise derives partly from its duty to protect the public and provide security. So the duties of prosecutors have very serious political relevance.

The respect of the law depends on the actions of the prosecutor. Where the prosecutor General dates criminals and money launderers, punishes genuine business men in order to please a section of people makes the people to lose confidence in the process of legal systems. Due process in criminal cases has many facets and nuances, and the ways in which defendants can be deprived of due process are numerous. When any element of due process is missing during a criminal prosecution, the fairness and constitutionality of the state's attempt to deprive an individual of their freedom has been compromised.

Every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But its not just about protecting suspects and defendants. It also makes societies safer and stronger. Without fair trials, victims can have no confidence that justice will be done. Without fair trials, trust in government and the rule of law collapses.  Prosecutors are the ones who must make sure that people have trust in their laws.

Despite this, it's a right that is being abused in courts across the country with devastating human and social consequences.

Despite the importance of fair trials being recognised by the international community, this basic human right is being abused day-in-day-out in across the country by the prosecutor General who now runs the prosecution department like his personal business. Zimbabwe must work to put an end to these abuses, towards realising our vision of a country where every person's right to a fair trial is respected.

The way the prosecution has handled the Drax case shows a prosecution with an empty head. The way the prosecutor general has failed to reason escapes common sense.
 The Prosecutor General has developed ways of imposing punishments, the case of Drax shows how the Prosecutor General presided over flawed political talk of "rebalancing" criminal justice systems to punish enemies of his friends has had a corrosive effective and it has exposed the new ways of using criminal justicce as a tool of punishing innocent people in the name of public interest. This is normally his own interest.

The Prosecutor General has refused to take advise so that he can achieve a working towards an ambitious way to punish Drax for competing against a pocket company of the Prosecutor General's powerful friend.  The Drax case is a good example of corruption in the prosecutor's office and the abuse of Dalish Nguwaya who has been portrayed as a criminal while protecting the real criminals. We won't get there overnight and we can't make it on our own. But with each step we take towards our vision of a Zimbabwe where every person's right to a fair trial is respected, Zimbabwe must protect people against miscarriages of justice and building fair and effective criminal justice systems that benefit everyone.  The treatment of Nguwaya's case embarrasses the nation and shows a backed backside to the President's effort of opening Zimbabwe for business.

In a painful irony what stands between Dalish Nguwaya and justice is the prosecutor General's undecided actions to act on the case. DRAX International frontman and businessman Delish Nguwaya released from remand by the court due to the failure by the state to provide a trial date.

Nguwaya was given back his travelling documents and the title deeds of his house, which were surrendered as part of his bail conditions.

Nguwaya was facing allegations of fraud. It was the state's case that sometime last year, Nguwaya the businessman and another individual only named as Dedja, showed interest in supplying medicines through a US$20 million loan facility under a company called Papi Pharma. The move was turned down after a vetting process by the relevant government department.

It is also alleged that after a short while, Nguwaya sent the same documents to the Ministry of Health and Child Care expressing interest in supplying medical products but using a different name, Drax consult SAGL.

Acting on the misrepresentation the then Minister of Health and Child Care, Dr. Obadiah Moyo, through the then Permanent Secretary in the ministry, Dr. Agnes Mahomva initiated a procurement process which involved communication among all the relevant stakeholders, who include the Health Ministry, Finance Ministry, Procurement Regulatory Authority of Zimbabwe (PRAZ) and Natpharm, culminating into a contract of supply of medicines and medical products between NatPharm and Drax Consult SAGL.

On these facts Nguwaya was arrested but there was no clear evidence to get a conviction.
Despite clear legal advise from the junior prosecutors the Prosecutor General refused to err on the side of reason. He stuck his guns in the unreasonableness and never looked at the case with an open eye.

The fact that a decisive decision was not taken by the prosecutor general it fed into the rumour machine where people will start speculating and coming up with all unsubstantiated issues.

The prosecutor general is supposed to clear the air in the Drax case. He is supposed to show the people that there was no actual prejudice and that the facts of the matter do not disclose a crime.

Instead, the prosecutor general chose to fuel the gossip causing anxious moments.
All what is needed is him standing up and stagger on the side of the truth.
By keeping quite the prosecutor is allowing the efforts of the president in fighting corruption to be dragged in the confusion and rubbishing the whole efforts.  
People now develop the catch-and-release mentality against the government because clear-cut cases are left to drag on allowing gossip to surround the facts.

The behaviour of the Prosecutor General deliberately tarnishes the image of the president.
The failure to clear the smoke surrounding the Drax case borders on the lines of prosecutorial misconduct.

In jurisprudence, prosecutorial misconduct is "an illegal act or failing to act, on the part of a prosecutor,
Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. Justice Sutherland explained prosecutorial misconduct as "overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense."Prosecutors are entrusted with determining who will be held accountable when a crime occurs. First and foremost, it is the prosecutor's job to seek justice and present the judge with facts and legal arguments that result in the conviction of the guilty.
Sometimes, prosecutors find evidence that may exonerate the person they are trying to convict. Because prosecutors are charged with presenting the truth, the prosecution is obligated to turn over all exculpatory evidence to the defense. Because the criminal justice system is adversarial - the prosecution and the defense battle against each other within the framework of the law - it is very difficult to hand the opponent the tools that could very well destroy their case. Nevertheless, it is the prosecutor's duty to do so.

Prosecutor General wields more power than any other actors in the criminal justice system. They have unreviewable power to go forward with a case or dismiss charges,
Unchecked power is always subject to abuse, and prosecutors sometimes engage in misconduct. Prosecutorial misconduct weakens the public's perception of the integrity of the legal system and undermines the ability of the courts to achieve justice.
The political impact on the shortcomings of the prosecutor general are that the electorate blames the president for the failures of the prosecutor general. If the prosecutor general messes up a case his name is never discussed in the corridors. The people direct their ammunition to the system and the president is the face of the system.

Looking at this case on the round the Prosecutor general has failed to close several cases he is aware that there is no evidence to convict. He has chosen to prosecute just to be seen to be working when in actual fact there is no prospects of success in the trial. The prosecutors are using their offices to do emotional prosecutions. Prosecution has become an active persecution in progress in the offices where justice should be manufactured.

The fact that the prosecutor responds to public outcry by hauling a person to court drag him through a trial and get acquitted is in itself abuse of the system.
Many Zimbabweans have gone through embarrassing trials and financial wrecking legal battles which are useless because the prosecutor is not confident to stand for the truth.
In an effort to be politically correct the prosecutor general's office has become political liability.

When a citizen loses his capital because the prosecutor is afraid to be truthful then an army of angry citizens is created.

Prosecutors wield an awesome power. They make the first (and sometimes the last) critical decisions on whether to deploy the ultimate power of the state - the power to punish - against particular targets. The degree to which and the ways in which prosecutorial power is checked largely define a society's conformance to the rule of law.
At the same time, however, the rule of law has been undermined by the prosecutor general in ways that have not been fully appreciated. Changes in the locus and dispersion of prosecutorial authority, increasingly numerous, complex, and malleable legal rules, and failing procedural checks on prosecutorial decisions have allowed prosecutors (along with other officials exercising prosecutorial authority) to impose drastic punishments on selected targets without constraints traditionally associated with the rule of law.
And the practical restraints that do exist still leave room for very significant - and very troubling - amounts of discretionary prosecutorial power. That power can be exercised to pursue the innocent, to impose punishment without trial or conviction, and to pressure targets to compromise or capitulate rather than bear the risks and costs of asserting their rights or their innocence.

The power of the government as prosecutor is not only abused in ordinary criminal cases where the poor and the powerless are subjected to the weight of the criminal law system. Prosecutorial power is also abused in high-profile cases against the powerful, sometimes to serve personal or political ends. It is abused as well in selecting and pursuing targets in the world of business, where prosecutions are done to give one rival an advantage over another rival.

According to sections 260 and 261 of the Constitution, the Prosecutor-General is independent and he and all the other officers of the National Prosecuting Authority must exercise their functions impartially and without political bias.

The case of Dalish Nguwaya and Obadiah Moyo exposes the barbaric legal jungle engineered by the Prosecutor General's office against those he feels are not in his camp. This making his office a camp rots the system and has serious repercussions on the whole government system. If there is no evidence against anyone the Prosecutor-General must explain his findings and set the person free. The idea of holding a person on routine remand without a trial makes people think that there is a game at play.

The PG must be confident of his position and set people free where they deserve freedom. Give them back what you are holding which is not a proceed of a crime.

 Because of the inept attitude many innocent people have had their lives destroyed their characters tarnished their livelihoods crushed and they have been set against the greater public. On a closer look most of the so-called high-profile corruption cases are actually high-sounding nothing.

vazet2000@yahoo.co.uk

Source - Dr Masimba Mavaza
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.

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