Govt spells out private prosecution guidelines

via Govt spells out private prosecution guidelines | The Herald November 25, 2015

Vice President Emmerson Mnangagwa yesterday tabled new amendments to the Criminal Procedure and Evidence Bill, including the conditions under which the Prosecutor-General must issue private prosecution to a private party when the State declines to charge an accused person.

The Bill sailed through the committee stage a fortnight ago, but VP Mnangagwa moved a motion to have it recommitted before the Chamber to allow him to include new provisions aimed at improving it.

Major highlights of the amendments are conditions of issuance of private prosecution and the reduction from seven days to 72 hours within which the PG can appeal against a court decision to grant an accused person bail.

One of the new provisions seeks to delete part of Clause 6 of earlier amendments which provides that the PG cannot be compelled to issue a private prosecution if he declines to charge an accused person.

The new amendments tabled yesterday give the conditions of issuance of private prosecution.

“The Prosecutor-General shall grant the certificate referred to in subsection (1) if (a) there is produced to him or her by the private party a written request in the form of a sworn statement from which it appears to the PG that the private party (i) is the victim of the alleged offence or is otherwise an interested person by virtue of having personally suffered, as a direct consequence of the alleged offence, an invasion of a legal right beyond that suffered by the public generally,” reads the provision.

Another condition is that the private party must have the means to conduct the prosecution and that it has to be conducted by the individual personally or through his or her legal practitioner.

The PG is empowered to refuse granting the certificate if the conduct complained of did not disclose a criminal offence and if there is no possibility of proving the charge.

The private party is required to disclose additional evidence that might have not been before the PG when he made the decision declining prosecution.

It is also provided that any failure to do so shall constitute an offence of defeating the course of justice.

There was a heated debate on the proposed amendments as some legislators felt that the amendments were self-contradictory.

Harare West MP Ms Jessie Majome (MDC-T) said the amendments on one hand “purported” to compel the PG to issue private prosecution certificate but further goes to make a U-turn and take away the right being conferred to a private party.

Zvimba West MP Cde Ziyambi Ziyambi (Zanu-PF) concurred with Ms Majome saying the provision contradicted itself.

“We are giving the PG a lot of powers to refuse arbitrarily granting of private prosecution,” said Cde Ziyambi.

In response, VP Mnangagwa said there was no contradiction adding “the two lawyers got lost”.

Both Ms Majome and Cde Ziyambo, who are members of the Parliamentary Legal Committee (PLC), were latter to concur again in condemning another provision which sought to amend Section 121 of the principal Act by reducing from seven days to 72 hours the period within which an accused can remain in custody while the PG launches an appeal against bail

Ms Majome said there was no need to confer powers to the PG to interfere with a decision of the court when it grants bail to an accused person.

She said the PG was not a judicial officer and should be treated equally with other parties that appear before the court.

Cde Ziyambi said he did not understand the rationale and practicality of reducing the days from seven to three considering that some cases could have taken place in remote areas such as Gokwe hence might take long to prepare appeal papers.

“Are we not going to breed laziness in the PG’s Office as they are going to have a second bite of the cherry. The separation of powers principle is now diminished when the PG has the power to override the decision of the court,” said Cde Ziyambi.

VP Mnangagwa said the two were misinterpreting the amendments saying when the PG was appealing he or she was not elevating himself to the level of the court.

The amendments sailed through the committee stage before they were referred to the PLC.