CONSTITUTION WATCH 4/2014

CONSTITUTION WATCH 4/2014

[9th June 2014]

The New National Prosecuting Authority Set Up by the Constitution

&

Its Enabling Act – The National Prosecuting Authority Bill

Introduction

The Constitution  Section 258 of the Constitution establishes a National Prosecuting Authority [NPA] which is responsible for prosecuting criminal cases on behalf of the State.  The NPA is headed by a Prosecutor-General who is appointed by the President on the advice of the Judicial Service Commission following the same public selection process as is applicable to judges.  [The present incumbent, Mr Johannes Tomana, did not go through this process, however;  he automatically became Prosecutor-General by virtue of paragraph 19 of the Sixth Schedule to the Constitution.]

The Constitution deals with several matters relating to the Prosecutor-General and the NPA, and leaves the rest to be covered by an Act of Parliament.  The main points dealt with in the Constitution are:

  • The Prosecutor-General must be independent of political direction and control [section 260].
  • The Prosecutor-General is appointed for a six-year term, renewable once [section 259(7)].
  • Officers of the NPA, including the Prosecutor-General:
    • must exercise their functions impartially and in a non-partisan manner [sections 260 and 261(2)];
    • must act in accordance with the Constitution and the law [section 261(1)] [This, incidentally, means that their decisions can be reviewed by the High Court].
  • The Prosecutor-General must publish the general principles by which he decides whether and how to institute and conduct criminal proceedings [section 260(2)].
  • The Prosecutor-General must report annually to Parliament on the activities of the NPA [section 262].

Enabling Act essential  Everything else about the NPA — its structure and organisation and the appointment and conditions of service of its officers — is left to be covered by an Act of Parliament.  The effect of the Constitution, therefore, was to create the NPA as an institution with no real existence:  it had only one member, the Prosecutor-General, no staff and no way of exercising its constitutional functions.  To enable it to do so, there has had to be an enabling Act of Parliament.

On 7th February the government published the National Prosecuting Authority Bill, which is intended to give the NPA functional capacity.  The Bill has had a leisurely passage through Parliament, being finally passed in the last week of May.  It must now go to the President for his assent before being gazetted as an Act.

Outline of the National Prosecuting Authority Bill

The Bill starts by making the NPA a corporate body [clause 3].  This is important, because it will enable the NPA to have its own property, such as premises and equipment, independently of the government.

Board and staff of the NPA

Clause 5 of the Bill goes on to establish a nine-member Board to run the NPA.  It will be chaired by the Prosecutor-General and, apart from him, will consist of:

  • the National Director of Public Prosecutions [the Prosecutor-General’s deputy, appointed by the Board “in consultation with” — which may mean with the concurrence of — the Minister of Justice];
  • the Director of Administration [the chief administrative officer of the NPA, again appointed in consultation with the Minister];
  • an ex-judge or a person qualified to be a judge, appointed by the Minister of Justice after consultation with the Judicial Service Commission [a sitting judge could not be appointed to the board because the appointment would be incompatible with his or her judicial independence];
  • a member of the Civil Service Commission;
  • a representative of the Ministry of Finance, appointed by the Minister of Justice;  and
  • three other members appointed by the Minister, with expertise in human resources management, accountancy and law.

At least five of the nine members will have to be women.

The Board will be responsible for administering and supervising the NPA, and appointing and disciplining its prosecutors and other staff members [It will not however be able to control the prosecutorial discretion of the Prosecutor-General since his independence is guaranteed by section 260 of the Constitution].  In exercising its responsibilities the Board will be subject to general policy directives issued by the Minister of Justice [clause 14].

The Board will appoint the professional staff of the NPA, i.e. the prosecutors, apparently without reference to the Minister, but the administrative staff will be appointed by the Board in consultation with [i.e. with the approval of] the Minister.  The Board will also be able to engage non-permanent staff under contract, apparently without the Minister’s approval [clause 17].  In addition, the Prosecutor-General will have power under clause 27 to engage persons to perform unspecified services for the NPA.  Professional staff will have to be qualified to practise law [clause 9 of the Bill], so they will need to be registered as legal practitioners.

The Board will be enjoined to delegate its functions so far as practicable [clause 7] and to establish offices at provincial, district and other local levels [clause 10].

The Board will have to submit annual reports to the Minister [their subject-matter is not stated] and the Minister will lay them before Parliament [clause 11].

Functions of staff

Clause 12 states that the Prosecutor-General conducts prosecutions on behalf of the State, and can stop prosecutions and issue certificates allowing private persons to institute prosecutions in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].  The Prosecutor-General may assign any of these functions to the National Director of Public Prosecutions and may authorise any other member of the NPA to exercise them.  The form of the authority is, rather oddly, set out in the Bill itself:  the Bill’s drafters apparently did not trust the Prosecutor-General to work out for himself how to word his authorities.

Under clause 13 the Prosecutor-General will have six months within which to formulate and publish the general principles by which he decides whether and how to institute and conduct criminal proceedings.  This publication is required by section 260(2) of the Constitution.

Conditions of service of staff

The Board will be responsible for fixing the conditions of service of the NPA’s staff, and will have to get the concurrence of the Minister of Finance for any conditions that increase expenditure from the Consolidated Revenue Fund [clause 19].  Staff members will be allowed to form associations to negotiate with the Board on service conditions [clause 20].

The Board will be responsible for disciplining members of the NPA’s staff, and will appoint disciplinary committees to investigate cases of misconduct [the grounds of misconduct are not specified in the Bill] [clause 22].  Members aggrieved by the Board’s decision in disciplinary cases will have a right of appeal to the Labour Court [clause 23].

The Board, with the concurrence of the Minister, will have power to make regulations under clause 30 providing for the conditions of service of staff members of the NPA.

Administration of NPA

The Bill establishes an administrative division of the NPA consisting of staff appointed by the Board in consultation with the Minister.  The division will be headed by a director who will report to the Permanent Secretary for Justice — and presumably also to the Board of the NPA [clause 15].

Finances of NPA

The NPA will be funded from the Consolidated Revenue Fund, i.e. by the Government, though the Board will be entitled to accept donations from other sources, including foreign governments, in consultation with the Minister [clause 24].  Under section 305(3) of the Constitution, the NPA will have a separate Vote in the annual budget, so its funds will not be channelled through the Ministry.

Comments on the Bill

Generally the Bill will achieve what is required of it under the Constitution, namely to establish the organisational structure of the NPA, in particular the Board which will be responsible for dealing with its staff and administration.

There are, however, several criticisms that can be made:

  1. Ministerial control  The extent of the Minister’s control over the NPA is not altogether clear.  In some cases the Board must do things “in consultation with” the Minister [e.g. the appointment of the National DPP under clause 8(2) and the appointment of administrative staff under clause 15] and in other cases “with the concurrence of” the Minister [e.g. the fixing of service conditions under clause 19(1) and the making of service regulations under clause 30].  In yet other cases things must be done “after consultation with” another person or authority [e.g. clauses 5(1) and 20].  A court may have difficulty working out how much control these phrases give to the Minister or authority concerned.

It should be pointed out, however, that the Minister’s power to appoint most members of the Board may not detract significantly from the NPA’s independence because the Board is responsible for administering the NPA and does not control its prosecutorial functions.

  1. Professional staff  Under clause 9 of the Bill, all the professional staff of the NPA must be registered legal practitioners.  The Board may find it difficult to attract enough qualified people to man all the NPA’s prosecuting stations.
  2. Top-heavy?  While it may be difficult for the NPA to find enough ordinary staff members, it will have rather a lot of “chefs”:  not only a Prosecutor-General but also a National Director of Public Prosecutions and a Deputy to the National Director.
  3. Responsibility for reports  Clause 11 of the Bill requires the Board to submit annual reports to the Minister, whereas section 262 of the Constitution makes the Prosecutor-General responsible for preparing the reports.
  4. Representativeness  There is no provision for the members of the NPA to be representative of Zimbabwe’s diverse communities, which is a must in terms of section 194(1)(j) of the Constitution.

Urgency of Bill

The Bill was published on 7th February and, as already noted, its progress through Parliament since then has been leisurely.  This lack of haste is a pity, because the Bill is very urgent.  As pointed out earlier, the Constitution established the NPA and declared that the former Attorney-General, Mr Tomana, would become the first Prosecutor-General, but the Constitution left all the other staff of the NPA to be appointed by the Board which will be established under the Bill.  So we have an NPA consisting of the Prosecutor-General and no one else.  None of the former members of the Criminal Division of the Attorney-General’s Office have been appointed to the NPA because there is as yet no Board to appoint them.  Hence only the Prosecutor-General can conduct prosecutions on behalf of the State because he is the only member of the NPA.  Prosecutions conducted on behalf of the State by anyone else are open to challenge on the ground that the prosecutors had no title to prosecute.

If ever there was a Bill that needed to be fast-tracked through Parliament, this was it.  It is to be hoped that the Bill will receive presidential assent and be gazetted as soon as possible so that the NPA Board and staff members can be appointed to make the NPA fully functional.

 

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