The exercise of public power is subject to the law and must therefore comply with the constitution, which is the supreme law.
That is a fundamental principle of constitutional supremacy and the rule of law. The exercise of public power must always be controlled by law.
The President, no matter how powerful, is constrained by the principle that he may exercise no power and perform no function beyond that conferred upon him by law.
On the eve of the 5th anniversary of the 2013 Constitution, President Emmerson Mnangagwa decided to undermine one of its most fundamental tenets.
He announced that he had established a special anti-corruption Unit “which shall be housed in the Office of the President and Cabinet”.
The members of the unit are to be announced in due course.
One of the terms of reference of the unit is: “Subject to the issuance of Authority to Prosecute by the Prosecutor-General, to prosecute corruption cases referred to the NPA by investigative agencies.”
The memo from the Presidency further announced that members of the special unit are to be bound by the Official Secrets Act (Chapter 11:10).
This means they may be prosecuted for communicating information they may have received in the workplace.
For example, disclosing that they were instructed to prosecute certain people for political advantage and abandon cases against political allies of the powerful, could result in criminal charges.
Critically, the allowances and conditions of service of the appointed members of the unit shall be set by the Office of the President and Cabinet.
This is different from the rest of the prosecutors, whose allowances and conditions of service are determined by the National Prosecuting Authority (NPA) Board, established in terms of the NPA Act.
In a video clip circulating on social media, Mnangagwa expressly states that the “unit of anti-corruption prosecutors will be directly responsible to me”.
It is comical.
It is basic constitutional law that no prosecutor should be answerable to the President or subject to his control or direction in the performance of his or her duties.
The President has no power to do what he has done.
It is plainly unlawful.
The announcement is a shocking fundamental attack on the independence of this vital institution.
This decision severely interferes with the independence of the office of the Prosecutor-General and the NPA as set out under the constitution.
Prosecutorial power is quasi-judicial. Whether one is prosecuted or not is a decision that must be taken independent of political, personal or partisan considerations.
It does not help that the November 2017 coup was justified on the basis that the army was targeting “criminals around President Mugabe”.
Is this a move to ensure that these “criminals” can be dealt with?
Without an independent and professional prosecutorial service, the citizens are at the risk of being prosecuted at the whim of politicians for ulterior motives.
Our courts have repeatedly stated that corruption is “a dangerous and insidious evil in any community and in particular requires to be guarded against in a developing country.
Corruption is a crime difficult to detect and more difficult to eradicate.
If unchecked or inadequately punished, it will disadvantage society by depriving it of a good, fair and orderly administration”.
But for this fight to be effective, it must be done by independent institutions that have credibility.
In Smyth v Ushewokunze & another, Chief Justice Gubbay, before the promulgation of the 2013 Constitution, made an outline of what society expects of a prosecutor:
l Must dedicate himself to the achievement of justice;
l Must pursue that aim impartially;
l Must conduct his case with due regard the ‘traditional precepts of candour and absolute fairness’;
l Like Caesar’s wife, he or she must be above any trace of suspicion;
l As a “minister of the truth” he or she has a special duty to see that the truth emerges in court; and
l Must state facts dispassionately.
Zimbabwe has a terrible history of selective arrest and selective prosecution.
This is why the 2013 Constitution is expressly endowed with provisions meant to protect the independence of prosecutorial authorities and insulate them from political control.
Zimbabwe has borrowed its criminal justice system from mostly the English.
Throughout English legal history, there has been debate on whether the Attorney-General is independent in making decisions on whether to prosecute or not.
The controversy regarding the independence of the Attorney-General caused the fall of a British Labour government in 1924 over what is known as the Campbell Affair.
The British Cabinet had directed the then Attorney-General to stay criminal proceedings against John Campbell, who was a publisher of a friendly political publication.
The Cabinet did not only seek to save the skin of Campbell, but went further and directed that no public prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained.
Almost 100 years later, the Mnangagwa government is shepherding us into a similar constitutional nonsense.
Prior to the promulgation of the 2013 Constitution, prosecutorial power vested in the Attorney-General.
The Attorney-General in this role was the chief government legal advisor, chief prosecutor, sat in Cabinet and was an ex officio Member of Parliament.
The Attorney-General was therefore in the vicinity of political influences. – ZimInd