ONGOING amendments to the law governing the operations of the National Prosecuting Authority (NPA) will have serious ramifications on the independence of the constitutional body which could compromise the integrity of the institution, legal experts have said as the current militarisation of the authority raises stink.
By Wongai Zhangazha
The security sector has virtually taken over the operations of the NPA with 160 officers from security ministries constituting almost three-quarters of the staff in the Prosecutor-General’s office.
The Ministry of Justice, which is headed by Vice-President Emmerson Mnangagwa, intends to abolish the post of national director of public prosecutions and introduce provision for posts of more than one deputy prosecutor-general.
According to the proposed draft Bill, “the board, in consultation with the minister (of Justice), shall determine to which posts it assigns the national director of prosecutions and the deputy national director of public prosecutions … There shall be deputy prosecutors-general appointed in terms of Section 8 of the National Prosecuting Authority Act”.
Sources in the NPA fear that the amendments will allow Mnangagwa, who is also caught in a noisy row over the selection of a new chief justice, to appoint senior NPA staff, including the deputy prosecutor-generals (PGs), which would be undesirable if not unconstitutional.
Officials say the provision for Mnangagwa to be involved in the appointment of deputy PGs, who shall head specific prosecutorial sections of other departments of the NPA and supervise members therein, would give him a grip on the body.
There are fears that the vice-president could abuse his role given that he appointed Ray Goba as acting Prosecutor-General despite the fact that he has a criminal record in Namibia.
They also feared that this would render the proposed draft Bill vulnerable to political meddling as the appointments are not subjected to transparent processes.
Officials at the NPA see the amendments as well as the demand that the agency’s staff report all high-profile cases to the ministry as an attempt by Mnangagwa to subvert the constitution and take control of operations at the institution.
The NPA is established in terms of the constitution and its independence is guaranteed in Section 260 which states that “(1) Subject to the constitution, the Prosecutor General (a) is independent and is not subject to the direction or control of anyone; and (b) must exercise his or her functions impartially and without fear, favour, prejudice or bias”.
“What looms large is that despite a national desideratum to have an independent prosecuting authority in Zimbabwe, someone, somewhere else desires to retain some political control of the institution. It is therefore imperative to traverse the history of the NPA since the new constitution came into force. This will expose the lack of good faith in those entrusted by the public with a fiduciary duty of ensuring compliance with the constitution,” said the source.
The source said it was important to note that before the establishment of the NPA, the prosecuting functions were exercised by the attorney-general who was a member of cabinet. Prosecutors then were civil servants employed by the Public Service Commission.
“The new constitution then changed such an undesirable situation by establishing an independent NPA whose head is equivalent to a Supreme Court judge while its officers are not part of the civil service,” the source said.
The source said while the amendments are still “proposed” it is critical that those who are appointed deputy prosecutor generals,they should be appointed in the similar way a prosecutor general is appointed, that is going through public interviews that judges undergo.
A prosecutor-general must have the same qualifications of a Supreme Court judge and his removal or appointment follows the same procedure applicable to appointment and removal of a judge.
“It must follow that a person who deputises such an important officer must as far as possible be appointed in the similar fashion to the prosecutor-general. (suspended prosecutor-general Johannes) Tomana escaped the rigorous of public interviews because of a provision that was dubiously inserted in the constitution to save him,” a source said.
“Now a person to be appointed deputy prosecutor-general must be appointed transparently from a pool of competent persons subjected to public scrutiny.”