via ‘PG can’t be forced to prosecute’ | The Herald October 26, 2015
The National Assembly has adopted a clause providing that the Prosecutor-General cannot be compelled to issue a certificate of private prosecution should he or she decline to charge an accused person, but still retains the power to issue one. The National Assembly adopted the provisions contained in the Criminal Procedure and Evidence Amendment Bill on Thursday last week despite resistance by MDC-T.
Vice President Emmerson Mnangagwa, who was steering the Bill, said the objection by the MDC-T lacked merit because the PG could still issue a certificate of private prosecution if he or she saw it fit. Clause Six of the Bill says no one can institute a private prosecution unless the PG has issued a certificate stating that he or she did not intend to prosecute the case in the name of the State.
“This clause will remove any suggestion that the Prosecutor-General is compelled to issue such a certificate.
“It also prohibits any corporate body, registered or unregistered association from applying for or receiving such a certificate,” read the memorandum of the Bill on Clause 6. There was a heated debate during the committee stage of the Bill as MDC-T legislators objected to the provision which they said set a bad precedent. Harare West MP Ms Jessie Majome, Mutare Central legislator Mr Innocent Gonese and Proportional Representative Ms Priscilla Misihairabwi-Mushonga objected to the provision.
Mr Gonese said it was wrong to give absolute discretion to the PG to prosecute, adding that there was no prejudice suffered by the State if the certificate was issued as the court still had the ultimate verdict on whether an accused was guilty or not. VP Mnangagwa said private prosecution was a mere privilege and not a right. “We cannot constrain the Prosecutor-General to say he must do this or that. “We are moving away from the law that compels the PG to issue a private prosecution,” said VP Mnangagwa.
The Bill was referred to the Parliamentary Legal Committee on Thursday to scrutinise if the additional amendments proposed by VP Mnangagwa were consistent with the Constitution. Last week, the National Assembly rejected proposed amendments by MDC-T legislators on the Bill. A rejection was made to a proposal to delete Clause 12 that conferred police with powers to detain a person for 24 hours who might not be in their sound or sober senses.
Ms Majome said the provision was prone to abuse, adding that the Mental Health Act and Liquor Act gave adequate protection for such situations. VP Mnangagwa said the clause was meant to protect the individual concerned and others. He said the police should record in their occurrence books the reason for the detention for purposes of accountability.
MDC-T legislators had also proposed the deletion of a clause that require for the determination of security costs in instances where a private prosecution certificate would have been issued. Opposition legislators argued that the requirement of such payment might impede private prosecution as some people might not have the money. But VP Mnangagwa said there was no prejudice as the discretion lied with the court to impose that directive to pay security costs.