President Emmerson Mnangagwa has established a special anti-corruption prosecution unit, which will be based in his office.
His reasoning is that he is not satisfied with the pace with which anti-corruption matters are being handled by the responsible authorities. The special unit will house prosecutors who will be directly responsible to the President.
This is an important development the legality and propriety of which requires scrutiny.
The step taken by the president is an acknowledgement that anti-corruption agencies have failed to discharge their mandate. The system is not working. This much is expressed by the president’s own dissatisfaction with the conduct of prosecutions by the National Prosecuting Authority (NPA). Furthermore, according to a statement by the Chief Secretary to the Cabinet, the NPA has failed to carry out prosecutions.
The Prosecutor-General (PG) has allegedly expressed concern that the NPA “lacks the human capacity to effectively prosecute these matters”. In short, the prosecuting authority has failed to deal with anti-corruption matters and its head’s excuse is that it lacks the necessary staff to perform its mandate.
For his part, the President seems to be responding to widespread criticism that his promise last November to fight corruption has not been fulfilled. The president wants to be seen to be taking firm action, especially as the election looms closer and criticism grows. Instead of supporting the NPA with resources, his solution is to create a new unit, another layer in the anti-corruption architecture.
Nevertheless, having diagnosed the problem, it is important for Mnangagwa to find the correct solution within the confines of the law. That solution must, therefore, be based on a solid legal foundation. It must be consistent with constitutionalism and the rule of law. It must now undermine the constitution and established constitutional principles and values.
In the announcements made by the President and his Chief Secretary, they did not specify the legal authority under which the unit has been established.
In the absence of specific legal authority, it can be concluded that the special unit has been established by Presidential decree, itself a hallmark of arbitrary rule. This is not a sign that the president wants to present to the world.
The Chief Secretary’s statement suggests that the special unit’s power to carry out prosecutions will be “subject to the issuance of Authority to Prosecute by the Prosecutor General”.
This means they are well aware that only the PG has the power to prosecute. They think they can get around it by invoking this issuance of authority to prosecute. But this is both dangerous and illegal. Interestingly, the statement also states that the members of the Special Unit will be subject to the Official Secrets Act, a situation that places onerous and unusual obligations because of the ominous nature of that legislation.
There is no legal authority that allows the Office of the President to exercise or in any way interfere with prosecution authority. As a matter of fact, the Office of the President should keep away from prosecution functions.
According to the constitution, the supreme law of the land, legal authority to prosecute vests in the NPA. It is the only agency that has the power to prosecute on behalf of the State.
In this regard, section 258 states as follows: “There is a National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.”
There is an exception provided for in section 263, under which powers of prosecution may be conferred on persons besides the NPA, but this legal authority must be given by an Act of Parliament and those powers must not limit or conflict with the NPA’s constitutional authority.
There is no indication that special unit’s powers of prosecution have been conferred by an Act of Parliament. Instead, the special unit is a creature of a presidential decree.
The NPA is headed by the PG, whose office is independent and does not form part of the civil service. In addition, persons who assist the PG in the performance of his duties are employed by a board, established under an Act of Parliament.
In this regard, section 259(10) states as follows: “An Act of Parliament must provide for the appointment of a board to employ persons to assist the Prosecutor-General . . . ”
These persons who exercise prosecution authority cannot, under any circumstances, be employed outside the NPA.
There is a good reason why the PG and his staff operate outside the normal civil service and it is to protect their independence. Placing prosecutors under the Office of the President undermines this important principle of independence.
Significantly, the constitution states that persons who assist the PG must only work under the direction and control of the PG. This is what section 259 says: “. . . in exercising their functions, those persons must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General.”
The law has traditionally recognised exceptions where private prosecutions may be permitted in rare circumstances.
It does not allow the setting up of separate units within the employment of the State to carry out prosecution functions outside the confines of the NPA.
Where it does, in the case of the military, this is because of generally accepted rules and norms that apply to such areas of the State.
The salient points that emerge from this legal presentation are as follows:
l Only the NPA, through the PG and his staff, has the authority to prosecute on behalf of the State. Where there is an exception, it must be established by law, not by decree.
The Office of the President does not have the authority to prosecute or to manage those who prosecute. Any person who exercises prosecution authority assisting the PG must be employed by the board of the NPA and must work under the direction and control of the PG. It is unconstitutional to give prosecution authority to persons who are controlled by the Office of the President. It is also unconstitutional for anyone, including the Office of the President, to direct or control persons who are exercising prosecution authority;
l The NPA and PG are independent and their independence is constitutionally protected. The moment the Office of the President interferes with the conduct of prosecution authority, it is undermining the autonomy of the NPA and the PG. This is a significant affront to the constitution; and
l Since it is illegal and unconstitutional to exercise prosecution authority outside the NPA and the PG in the absence of any established legal authority, any legal action or prosecution that is performed in that manner would be fatally flawed. In other words, challenged in a court of law, it would be a legal nullity.
The problem that the President has identified at the NPA can be solved without undermining its independence and integrity. If it is a question of resources, then all that needs to be done is to invest resources in the NPA.
The lack of resources points to a systemic problem which needs a comprehensive solution that does not leave the NPA exposed. If the PG has agreed to this solution whereby he would have to give prosecution authority to persons who are outside his control and are housed in the Office of the President, then he too is undermining his office and the constitution.
If the President believes the PG has failed to discharge his mandate and no longer has confidence in him, then he should do the right thing by the constitution and initiate the removal process.
When a president takes over the prosecution function from the PG, it suggests that he has lost confidence in him.
In any event, no self-respecting public officer would remain in office when the boss has demonstrated such lack of confidence in him. It is important to understand that the Office of the President or its members may become subjects of investigation and prosecution for corruption. As such, they must never have control or come anywhere close to anti-corruption functions.
The placement of the Zimbabwe Anti-Corruption Commission (Zacc) under the Office of the President was itself an unconstitutional act which violates its independence.
Taking the entire anti-corruption system and placing it under the Office of the President is a retrogressive step in the direction of centralizing and concentrating power in the hands of one man. It is a bad sign of populism when one person overrides established institutions in the name of fighting corruption.
No-one doubts that much needs to be done to solve the problem of corruption in Zimbabwe. However, it must be done correctly and in accordance with the law and the constitution. There is no room for populism. It must not undermine constitutional agencies and processes.
If Zacc and the NPA are failing, the President should have the courage to replace them with more competent persons. Creating a new layer on top of existing ones is not the solution. The world over, the best practice is to separate the executive from prosecution functions because independence is absolutely necessary for carrying out those functions.
Magaisa, a law lecturer and researcher, is former advisor to Zimbabwe’s prime minister. He regularly writes on legal and political matters.