The exercise of public power is subject to the law and must therefore comply with the constitution, which is the supreme law.
That is a fundamental principle of constitutional supremacy and the rule of law. The exercise of public power must always be controlled by law.
The President, no matter how powerful, is constrained by the principle that he may exercise no power and perform no function beyond that conferred upon him by law.
On the eve of the 5th anniversary of the 2013 Constitution, President Emmerson Mnangagwa decided to undermine one of its most fundamental tenets.
He announced that he had established a special anti-corruption Unit “which shall be housed in the Office of the President and Cabinet”.
The members of the unit are to be announced in due course.
One of the terms of reference of the unit is: “Subject to the issuance of Authority to Prosecute by the Prosecutor-General, to prosecute corruption cases referred to the NPA by investigative agencies.”
The memo from the Presidency further announced that members of the special unit are to be bound by the Official Secrets Act (Chapter 11:10).
This means they may be prosecuted for communicating information they may have received in the workplace.
For example, disclosing that they were instructed to prosecute certain people for political advantage and abandon cases against political allies of the powerful, could result in criminal charges.
Critically, the allowances and conditions of service of the appointed members of the unit shall be set by the Office of the President and Cabinet.
This is different from the rest of the prosecutors, whose allowances and conditions of service are determined by the National Prosecuting Authority (NPA) Board, established in terms of the NPA Act.
In a video clip circulating on social media, Mnangagwa expressly states that the “unit of anti-corruption prosecutors will be directly responsible to me”.
It is comical.
It is basic constitutional law that no prosecutor should be answerable to the President or subject to his control or direction in the performance of his or her duties.
The President has no power to do what he has done.
It is plainly unlawful.
The announcement is a shocking fundamental attack on the independence of this vital institution.
This decision severely interferes with the independence of the office of the Prosecutor-General and the NPA as set out under the constitution.
Prosecutorial power is quasi-judicial. Whether one is prosecuted or not is a decision that must be taken independent of political, personal or partisan considerations.
It does not help that the November 2017 coup was justified on the basis that the army was targeting “criminals around President Mugabe”.
Is this a move to ensure that these “criminals” can be dealt with?
Without an independent and professional prosecutorial service, the citizens are at the risk of being prosecuted at the whim of politicians for ulterior motives.
Our courts have repeatedly stated that corruption is “a dangerous and insidious evil in any community and in particular requires to be guarded against in a developing country.
Corruption is a crime difficult to detect and more difficult to eradicate.
If unchecked or inadequately punished, it will disadvantage society by depriving it of a good, fair and orderly administration”.
But for this fight to be effective, it must be done by independent institutions that have credibility.
In Smyth v Ushewokunze & another, Chief Justice Gubbay, before the promulgation of the 2013 Constitution, made an outline of what society expects of a prosecutor:
l Must dedicate himself to the achievement of justice;
l Must pursue that aim impartially;
l Must conduct his case with due regard the ‘traditional precepts of candour and absolute fairness’;
l Like Caesar’s wife, he or she must be above any trace of suspicion;
l As a “minister of the truth” he or she has a special duty to see that the truth emerges in court; and
l Must state facts dispassionately.
Zimbabwe has a terrible history of selective arrest and selective prosecution.
This is why the 2013 Constitution is expressly endowed with provisions meant to protect the independence of prosecutorial authorities and insulate them from political control.
Zimbabwe has borrowed its criminal justice system from mostly the English.
Throughout English legal history, there has been debate on whether the Attorney-General is independent in making decisions on whether to prosecute or not.
The controversy regarding the independence of the Attorney-General caused the fall of a British Labour government in 1924 over what is known as the Campbell Affair.
The British Cabinet had directed the then Attorney-General to stay criminal proceedings against John Campbell, who was a publisher of a friendly political publication.
The Cabinet did not only seek to save the skin of Campbell, but went further and directed that no public prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained.
Almost 100 years later, the Mnangagwa government is shepherding us into a similar constitutional nonsense.
Prior to the promulgation of the 2013 Constitution, prosecutorial power vested in the Attorney-General.
The Attorney-General in this role was the chief government legal advisor, chief prosecutor, sat in Cabinet and was an ex officio Member of Parliament.
The Attorney-General was therefore in the vicinity of political influences.
After the separation of the Attorney-General role from the prosecutorial responsibilities, the following further changes were constitutionally introduced:
The Prosecutor-General is no longer a presidential appointee.
He or she is appointed through the same process as that used to appoint judges.
He is appointed in an open and transparent manner.
In fact, the current Prosecutor-General, Ray Goba, owes his office to the fact that the High Court confirmed that the constitutional position is that once the President has appointed him he cannot turn around and change his mind, like he can with his ministers.
Under the former constitution, the appointment process was executive driven.
The existence of vacancies and the appointment processes were opaque. Under the 2013 Constitution, the vacancy is advertised, public interviews are conducted and three names are submitted by the Judicial Service Commission to the President.
The President picks one of the three.
If not satisfied, a further list is submitted, from which he has no choice but to appoint.
The appointment process for the Prosecutor-General under the new constitution reveals a deliberate move towards openness and accountability.
It seeks to limit executive influence in the appointment by limiting the power of the President to push his preferences.
At the same time, public confidence is enhanced by an appointment process that seeks to draw in the best and independent minds available.
The constitution requires the person who ascends to the office to be qualified for appointment as a judge of the Supreme Court.
(Compare: High Court judge for the Attorney-General position).
The constitutional provisions relating to the removal of a judge from office apply to the removal of the Prosecutor-General from office.
They do not apply to the Attorney-General.
The Prosecutor-General is in terms of section 260 (1) (a) and (b) independent and is not subject to the direction or control of anyone and must exercise his or her functions impartially and without fear, favour, prejudice or bias.
This is fundamental to the existence of an independent prosecuting authority.
Section 258 of the Constitution establishes the NPA “responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions”.
It is headed by a Prosecutor-General, who is not part of the civil Service.
The Prosecutor-General holds office for a maximum 12 years made up of two six-year terms renewable once.
The conditions of service of the Prosecutor-General are protected.
Like for judges, his remuneration is a charge on the Consolidated Revenue Fund and provided for in terms of an Act of Parliament.
Further, the remuneration must not be reduced during the Prosecutor-General’s tenure of office.
Section 259 (10) of Constitution further seeks to secure the independence of the members of the NPA.
It provides that an Act of Parliament must provide for the appointment of a board to employ persons to assist the Prosecutor-General in the exercise of his or her functions, and must also provide: (a) for the qualification of those persons; (b) for the conditions of service, conduct and discipline of those persons; (c) that in exercising their functions, those persons must be independent and impartial and subject only to the law and to the direction of and control of the Prosecutor-General.
It is the board of the NPA that decides the remuneration of prosecutors and not the Office of the President and Cabinet.
The danger of the Executive arrogating itself this responsibility in relation to the “special unit” is obvious.
He who pays the piper calls the tune!
The same Act of Parliament must provide for the structure and organisation of the NPA, and generally for the efficient performance and well-being of the NPA.
This means that no President has the power to willy-nilly reorganise the NPA and set it up in his own office.
Section 260 (2) requires the Prosecutor-General to “formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings.”
The prosecution policy means that there is an advance public declaration of the policy guidelines of the NPA.
This reduces abuse of discretionary power.
When the Prosecutor-General or any of his officers makes any decision covered by the prosecutorial policy, the decision can be challenged in court if it does not comply with the prosecutorial policy.
Section 261(1) requires the Prosecutor-General and the NPA officers to act in accordance with the Constitution and the law.
No officer of the NPA may, in the exercise of the his or her functions: (a) act in a partisan manner; (b) further the interests of any political party or cause; or (c) prejudice the lawful interests of any political party or cause; or (d) violate the fundamental rights or freedoms of any person.
Officers of the NPA are prohibited from being active members of any political party or organisation.
The Constitution further empowers Parliament to legislate further to ensure the “political neutrality” of officers of the NPA.
It falls on the shoulders of the Prosecutor-General in particular, to ensure that:
l The prosecuting authority performs its functions honestly and without fear, favour or prejudice;
l Decisions to institute criminal prosecution are taken honestly, fairly and without fear, favour or prejudice;
l Prosecution policy is determined honestly and is appropriate to the needs of our country;
l The criminal justice system insofar as it concerns prosecutions is fairly administered;
l Any improper interference, hindrance or obstruction of the prosecuting authority by any organ of state is not tolerated; and
l All officers carry out their functions honestly and fairly.
In terms of accountability, the Prosecutor-General, and the NPA account to Parliament. Through the Minister of Justice, they report annually on the “operations and activities of the NPA”.
If, as alleged by the President, the NPA is not performing to its expected standard, it must be held accountable by Parliament.
If the Prosecutor-General is grossly incompetent, the provisions of section 187 of the Constitution must be invoked.
The Prosecutor-General can only be removed from office in terms of section 187 of the Constitution and only for:
l Inability to perform the functions of his or her office, due to mental or physical incapacity;
l Gross incompetence; or
l Gross misconduct.
Before removal, a tribunal must be set up by the President.
The tribunal must inquire into the question of removing the Prosecutor-General concerned from office and, having done so, report their findings to the President on whether or not the Prosecutor-General should be removed from office.
The President is required to act in accordance with the tribunal’s recommendation.
It is constitutionally impermissible for the President to resort to extra-constitutional means to fight corruption.
Section 263 allows Parliament to pass a law to “confer powers of prosecution on persons other than the National Prosecuting Authority, but those powers must not limit or conflict with the authority’s powers”.
No such law has been passed enabling the President to create this special unit.
Even if a law were to be passed, the constitutional requirements on independence would need to be complied with.
The Prosecutor-General is the most eminent officer in the criminal justice system.
The Prosecutor-General occupies a very important constitutional position.
He heads the NPA which must be independent.
In State v Yengeni, a South African court stated that the Constitution guarantees the professional independence of the prosecuting authority’s head and staff with “the obvious aim of ensuring their freedom from any interference in their functions by the powerful, the well-connected the rich and the peddlers of political influence”.
Discussing the role of prosecutors, the same court opined that, “The untrammelled exercise of their powers in a spirit of professional independence is vital to the functioning of the legal system.
The independence of the Judiciary is directly related to, and depends upon, the independence of the legal professions and of the National Director of Public Prosecutions.
Undermining this freedom from outside influence would lead to the entire legal process, including the functioning of the Judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.”
The President has stated that he has created this unit on the recommendation of the Minister of Justice, Legal and Parliamentary Affairs.
He ought to know better.
The President must receive competent legal advice at all times.
If such playground errors can escape all the necessary checks that the President ought to have, we are in for a season of monumental legal embarrassment