On February 20, 2019, the ConCourt, sitting as a full
bench, unanimously banned the use of State security agents as public
prosecutors in civilian courts.
The ConCourt said their secondment to the National
Prosecuting Authority (NPA) was a serious violation of the Constitution.
The ruling, which becomes effective on February 20 this
year, came following an application filed by the Zimbabwe Law Officers’
Association and former public prosecutor Derek Charamba, in which the parties
sought an order compelling Prosecutor-General (PG) Kumbirai Hodzi and Justice
minister Ziyambi Ziyambi to stop engaging police and army personnel as public
prosecutors.
The ConCourt gave them until February 20 to vacate the
civilian courts.
In January 2015, the late former Chief Justice Godfrey
Chidyausiku, who then headed the nine-member ConCourt bench, reserved judgment
in the matter after submissions were made by the PG’s representative Sharon
Fero and applicants’ lawyer, Advocate Tawanda Zhuwarara.
But on February 20 last year, ConCourt judge Justice
Antoinette Guvava delivered the unanimous judgment and read out the operative
part which ordered the PG to disengage the services of security officers from
the NPA over two years.
“The engagement by the first respondent (NPA) of the
serving members of the security services to prosecutorial duties is in
contravention of section 208 (4) of the Constitution … It is, hereby, ordered
that: the first respondent (NPA) is directed to disengage all members of the
security services within 24 months from the date of this order,” Justice Guvava
said.
During the hearing, Justice Chidyausiku took the PG’s
Office to task, demanding an explanation on why NPA wanted its job to be done
by police officers and soldiers still in service.
“Why do you want the police to do your job? We in the
Judiciary do not want to have police officers as magistrates,” Justice
Chidyausiku said then.
“Give us one good reason why we should have police
prosecutors as opposed to civilian prosecutors … In principle, I do not see the
reason why the PG would want his job done by the police,” he said.
In response, Fero said the practice of engaging security
forces as public prosecutors had been in existence since time immemorial, adding
that the main reason was the unattractive conditions of service offered by NPA.
Fero also said there were no provisions in the Constitution
that precluded security forces from being engaged as prosecutors.
But in his submissions on behalf of the applicants,
Zhuwarara said the use of security forces to perform prosecutorial duties in
civilian courts was in violation of section 208(4) of the Constitution.
He said that engagement of the police and army officers to
prosecute in civilian courts was a misnomer, adding that the practice could not
be condoned, tolerated or excused in a democratic society.
“The mechanics of birthing a public prosecutor are
different from those put in place to bring about a police officer or an army
officer … They (police and army prosecutors) are part of the security system
and cannot be engaged in civilian institutions since they are bound by specific
rules of discipline,” he said.
Charamba yesterday said they would wait for the PG to
comply with the order, failure of which they would take him to task.
“We will go back to court if they defy, our papers are
ready. We are giving them time to comply with the order. The NPA was given two
years which is ample time to recruit and the prosecutors to wind up their
cases,” Charamba said. Newsday
0 comments:
Post a Comment