A STORM is brewing in the National Prosecuting Authority (NPA) over ongoing amendments to the law governing the body’s operations and a demand that its officers report all high-profile cases “stage-by-stage” to the Justice ministry, supervised by Vice-President Emmerson Mnangagwa, in clear violation of the constitutional independence of the institution.
By Wongai Zhangazha
The amendments will allow Mnangagwa, who is also caught in a noisy row over the selection of a new chief justice, to appoint senior NPA staff, including the deputy prosecutor-generals (PGs), which would be undesirable if not unconstitutional.
Officials at the NPA see the amendments as well as the demand that the agency’s staff report all high-profile cases to the ministry as an attempt by Mnangagwa to subvert the constitution and take control of operations at the institution.
The abuse of office accusation comes at a time when there is tension between the ministry and the NPA over suspension of PG Johannes Tomana, controversial appointment of Acting PG Ray Goba and militarisation of the body.
President Robert Mugabe in July 2014 signed the NPA Act into law, paving way for the operationalisation of the authority whose role used to be part of the Attorney-General’s Office.
The NPA is established in terms of the constitution and its independence is guaranteed in Section 260 which states that “(1) Subject to the constitution, the Prosecutor General (a) is independent and is not subject to the direction or control of anyone; and (b) must exercise his or her functions impartially and without fear, favour, prejudice or bias”.
According to an internal memorandum dated February 1 2017, written to Goba and copied to the Deputy PG (Florence Ziyambi) and director of administration Colonel Solomon Siziba, by the national director of public prosecutions Nelson Mutsonziwa, the heads of department (HoDs) at the Justice ministry have demanded that the NPA should update ministry officials on all major cases.
Justice ministry HoD meetings are chaired by Mnangagwa.
“The meeting (Justice ministry) insisted that the NPA include in its reports all high-profile cases and the stage each case has reached. It is the meeting’s view that the NPA’s contribution to the meeting without reporting on such information is not good enough,” the memo reads. “At the next meeting, the meeting would want to know the NPA’s unreserved response.”
The NPA reported on all cases handled between September and December 2016 in the High Court, Supreme Court and Constitutional Court.
Officials in the NPA told the Zimbabwe Independent this week that all professionals in the body were uncomfortable with the ministry’s unlawful demand.
“As it stands, there is a standoff between the NPA board and the Ministry of Justice over the policy directive from the latter requiring the NPA to report on all high-profile cases being handled by the office of the heads of department meeting chaired by Mnangagwa source said.
The NPA board, chaired by Goba, is also not comfortable with the ministry’s directive.
Minutes of a board meeting held on October 26 2016 indicate that the board tasked Goba with engaging Mnangagwa over the contentious issue.
“The concern was that the meetings often place NPA representatives in a position where they were called upon to divulge sensitive NPA cases for open discussion, adversely affecting NPA independence,” read the minutes.
The board resolved “that the chairman consults the Vice-President on whether the NPA should continue to attend the meeting of heads of department.”
Some NPA staffers are also concerned by amendments to the NPA Act which are being introduced by the Justice ministry. The bulk of the amendments are being seen as an attempt to ensure there is political control of the institution in the context of Mugabe’s succession politics.
When the NPA Act was initially passed, the most senior person after the PG was the national director of public prosecutions followed by a deputy national director of prosecutions. The Act did not consider Part 4 of the 6th Schedule to the constitution which effectively states that anyone formerly employed in the criminal division of the AG’s Office continues to hold or act in that office, or the equivalent office under the constitution, on the same conditions of service until the expiry of his term of office in terms of this constitution, or those conditions of service as the case may be.
The policymakers noticed the anomaly and corrected it resulting in the first amendment of the NPA Act.
This resulted in Ziyambi being appointed deputy PG, while former director of public prosecutions, Mutsonziwa, continued as the national director of public prosecutions.
Sources said they were shocked to learn that even before the amendment of the NPA Act in June last year, another amendment was already being mooted by the Justice ministry.
“As far back as May 2016, before the president assented to the NPA Amendment Act, the Justice ministry was drafting an amendment before another amendment came into force. Many issues arise from the proposed amendments to the NPA Act for the second time in less than a year,” said the source.
“There is now intention to abolish the post of national director of public prosecutions and provision for posts of more than one deputy prosecutor-general. There is evidence that the Bill was spearheaded by the Tomana-led NPA board until he was suspended on July 6 2016.”
According to the proposed draft Bill, “the board, in consultation with the minister (of Justice), shall determine to which posts it assigns the national director of prosecutions and the deputy national director of public prosecutions … There shall be deputy prosecutors-general appointed in terms of Section 8 of the National Prosecuting Authority Act”.
Officials say the provision for Mnangagwa to be involved in the appointment of deputy PGs, who shall head specific prosecutorial sections of other departments of the NPA and supervise members therein, would give him a grip on the body. There are fears that the vice-president could abuse his role given that he appointed Goba as acting PG despite the fact that he has a criminal record in Namibia.
The appointment of Goba put Mnangagwa in an invidious position as the PG’s job requires someone with integrity or simply without a criminal record.
“It is bad enough for a deputy PG to be appointed ‘in consultation with the minister’, who is a politician and without even spelling out the qualification requirements of such a deputy PG’s post and it is even worse for the minister to have a say in the deployment of the said PG’s deputies,” another source said.
“The independence of the NPA will be compromised. It is critical to note that a deputy PG has the same powers to act and exercise any functions of the PG’s powers to a person whose appointment is not subjected to transparent processes, the proposed draft Bill becomes nothing but a political manoeuvre.”
The amendments would render Mutsonziwa jobless (as the amendments abolish the national director of public prosecutions post), while there were suspicions that he would be elevated to be one of the deputies of the PG through the back door.
“It is public record that Mutsonziwa failed to meet the grade of a High Court judge when he participated as a candidate for public interviews in 2014. A PG must have the qualifications of a Supreme Court judge. By any standard, his deputy must at least be qualified to be a judge whose appointment follows public interviews by the Judicial Service Commission (JSC),” the source said.
“As noted with the chief justice saga, any amendment proposed by the Ministry of Justice must be viewed suspiciously as it is very clear to all discerning people that the amendment Bill in parliament was done to ensure that someone who does not qualify for appointment during the day will be able to qualify under the cover of political darkness.”
Minutes of the NPA board meeting held on October 26 2016 indicate that the board is also worried by the amendments.
“It was reported that Sections 2 and 32 subsection (2) of the NPA Act Chapter 7.20 were amended to accommodate the post of the deputy PG and the deletion of the deputy national director of public prosecutions respectively and substitution with national director of public prosecutions,” read the minutes.
The board expressed concern on the fact that the amendments were done without its knowledge.
At the meeting, the board deputy chairperson tried to justify the amendment by stating that there was an omission during the drafting of the NPA Act. Ziyambi stated that the new post of the deputy PG assumed the duties of the national director of public prosecutions implying that the national director of public prosecutions now has no specified duties.
“The creation of the deputy PG led to the amendment of Section 5 of the NPA Act Chapter 7.20 where the national director of public prosecutions was deleted and substituted with the deputy PG making the incumbent the deputy chairperson of the board,” the minutes read.
“It was found that the designation of the PG and that of an national director of public prosecutions was one and the same, therefore there was need to streamline this as soon as the proposed amendments currently with cabinet were approved. At the moment the two posts of deputy PG and national director of public prosecutions will remain and function the way they are functioning.”
Other problems engulfing the Justice ministry relate to the current process of the appointment of the chief justice, in which the vice-president is entangled. Mnangagwa was also recently accused of forcing outgoing Chief Justice Godfrey Chadyausiku into early retirement without Mugabe’s knowledge before that was fortuitously reversed.