Fair and effective prosecution is essential to a properly functioning criminal justice system and to the maintenance of law and order in a democratic state.
The individuals involved in a crime – the victim, the accused, and the witnesses – as well as society as a whole have an interest in the decision whether to prosecute and for what offence, and in the outcome of the prosecution. The decision to prosecute or not to prosecute is of great importance and have far-reaching consequences for an individual. Even where an accused person is acquitted, the consequences resulting from a prosecution can include loss of reputation, disruption of personal relations, loss of employment and financial expense, in addition to the anxiety and trauma caused by being charged with a criminal offense.
A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. For victims and their families, a decision not to prosecute can be distressing. The victim, having made what is often a very difficult and occasionally traumatic decision to report a crime, may feel rejected and doubted. The worst consequences are in situations where the criminal justice system is weaponised to fight political opponents. Weaponising the justice system undermines democracy.
The criminal prosecution system in Zambia has given most Zambians cause for concern. Currently, one of the most alarming practices is the police charging people with serious unbailable crimes and keeping them behind bars on the pretext that they are waiting for instructions from the DPP office on how to proceed in the case. The DPP then inordinately delays giving the instructions which results in the accused remaining behind bars for a protracted period of time. This scenario suggests that in Zambia, the police have captured the prosecution service, and have taken over the constitutional responsibilities of the DPP and determine who is prosecuted, when, and for what.
The police arrest and draft charges and then refer the matter to the DPP. In practice, it should be the other way round. The Police should arrest people and prepare the docket and hand it over to the DPP to determine whether a criminal charge is sustainable on the evidence provided and the drafting of charges. Drafting charges requires legal training which the police do not have. Investigation (a police function) and prosecution (prosecution function) are two distinct functions.
A number of recent cases demonstrate the appalling levels of drafting criminal charges in Zambia. In the Mushipe sedition case, the drafters of the charges were ignorant of the legal definition of sedition and the magistrate expressed surprise that a charge was brought on the facts presented to the court which did not disclose sedition by any stretch of imagination.
In 2018, Hakainde Hichilema was charged with treason and the charge sheet did not disclose an overt act—a necessary element in any treason charge. In 2016 Mwaliteta and others were charged with robbery for questioning election results. They were acquitted after spending a year in detention. In the Laura Miti and Pilato case in Livingstone where the two were charged with assaulting police officers and disorderly conduct, the police officers who testified could not agree on what happened at the church where the offence is alleged to have occurred. This is very basic legal knowledge which any well-trained lawyer should know. Part of the Criminal Procedure course in the law degree teaches one how to draft criminal charges, and criminal law course teaches lawyers the elements of the crimes.
Clearly, in Zambia as the cases above demonstrate, the charge is more important than its outcome. As a prosecutor in the Legal Affairs office in the 1970s, we reserved Thursdays as a day to visit the Lusaka Central Police to vet dockets. We went through dockets with the police and advised them to close dockets when the facts did not reveal a crime and asked them to gather further evidence where this was necessary in order to sustain a charge.
Nowadays, people are brought to court on defective charges and the police have taken the upper hand while the Director of Public Prosecutions now seems to follow the police with cap in tow. The practice represents the degradation of the prosecution services. This has fundamentally compromised governance and placed at risk the reliability and predictability that is demanded of the criminal justice system by the rule of law. Apart from this sad development, this exemplifies the corrosive effect on our institutions and on the fundamental concept of the right of the accused person to a speedy trial. There are only two possible explanations for the situation, either the DPP’s office is compromised and is playing political games or the office lacks the necessary integrity or competence to undertake competent prosecutions.
The purpose of this article is to show that through this practice the DPP’s office has abandoned its Constitutional responsibility and that the practice violates the due process right to a speedy trial.
Article 18 (1) of the Zambian Constitution provides that if any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. This means that a criminal defendant must be brought to trial for his or her alleged crimes within a reasonably short time after arrest.
The reasons for the existence of this right is to avoid the following: (a) a lengthy unfounded imprisonment which eventually ends with the defendant being innocent; (b) minimising the anxiety of waiting case resolution and (c) protecting the defendant’s ability to defend against charges (e.g. evidence may disappear and witnesses may fade over time).
The office of Director of Public Prosecutions is established by article 180 of the Constitution. Article 180 (3) states that the Director of Public Prosecutions is the chief prosecutor for the government and head of the National Prosecutions Authority. The Director of Public Prosecutions may institute and undertake criminal proceedings against a person before a court, other than a court martial, for an offence alleged to have been committed by that person.; take over and continue criminal proceedings instituted or undertaken by another person or authority and discontinue, at any stage before judgment is delivered.
In article 180 (7) the Constitution provides that the Director of Public Prosecutions shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office. Article 180 (8) provides that the DPP’s functions maybe exercised in person or by a public officer, or legal practitioners authorised by the Director of Public Prosecutions, acting under the general or special instructions of the Director of Public Prosecutions. As can be seen from these provisions the Constitution gives the Director of Public Prosecutions complete control of all prosecutions in Zambia. No prosecutions can proceed without the DPP’s consent.
If someone is in charge of prosecutions, they would have to give directions or furnish guidelines to the police, including investigative officers and prosecutors, setting out standards of professional responsibilities and essential duties of prosecutors. In prosecution matters, the DPP must act on behalf of the community. Prosecutors must always act with fairness and detachment with the objectives of establishing the truth and ensuring a fair trial. A prosecutor’s overarching duty is not to win a case, but that justice shall be done.
The foundation of a criminal justice system in a democratic state is “due process of law” which requires law enforcement officers and prosecutors to safeguard “fundamental fairness” in the administration of justice. That is the presumption of innocence and a fair process by which an individual is investigated, and charged. If an investigation or prosecution does not or cannot provide due process for its subjects, the DPP is duty bound to stop the prosecution. Among the myriad ways the government can violate due process are through “vindictive” uses of its law enforcement powers and through public comments on the purported guilt of a subject that impairs the presumption of innocence and a fair trial.
Prosecutors wield enormous power. They make the first critical decision on whether to deploy the ultimate power of the state – the power to punish – against particular targets. The degree to which, and the ways in which, prosecutorial power is checked largely defines a society’s conformance to the rule of law. The power can be exercised to pursue the innocent, to impose punishment without trial or conviction, and to pressure targets to compromise or capitulate rather than bear risks and costs of asserting their rights or innocence. Where the system is unchecked, it allows unprincipled prosecutors to impose drastic punishments on selected targets without the constraints traditionally associated with the rule of law.
In Zambia the power of the government as prosecutor is not only abused in ordinary criminal cases where the poor and the powerless are subjected to the weight of the criminal law system, prosecutorial power is also abused in high profile cases against the powerful, to serve personal or political ends. It is abused as well in selecting and pursuing targets in the world of business, where prosecution substitutes for the ordinary regulatory processes or overrides salutary competitive forces.
In closing, I would like to say that it is important that we set to recapture the police and the prosecution service so that we ensure that prosecutors carry out their functions in accordance with the constitution which provides that the Director of Public Prosecutions shall be independent in the performance of her functions. The DPP and her prosecutors should exercise their functions free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. They should at all times uphold the rule of law, integrity of the criminal justice system and the right to a fair trial.
For us as a country to reign in the prosecution authority, prosecutors and the police, the judiciary needs to play its part in ending the blatant abuse of the criminal justice system. The judiciary is critical to safeguarding the rights of people and should not act like a department of the executive. There are many good judges in Zambia but sadly, there are also many who act as if they were a branch of the executive. These are the ones doing irreparable harm to the judiciary.
The judiciary have the power to dismiss cases that are clearly an abuse of the prosecutorial service. Attaining institutional autonomy from the executive requires courageous magistrates and judges. Chomsky’s admonition to intellectuals also applies to judges; “Those who qualify for the title have a degree of privilege conferred by the status, yielding opportunity beyond the norm. Opportunity confers responsibility -which in turn, poses choices, sometimes-hard ones. One path is to follow the path of integrity wherever it may lead. Another is to put such concerns aside, passively adopting the conventions instituted by structures of authority. The task in the latter case then is to carry out faithfully the instructions of those who hold the reins of power, to be loyal and faithful servants, not after reflective judgment but reflective conformism. That is a fine way to evade the moral and intellectual difficulties of challenge and to escape what can be painful consequences of seeking to bend the moral arc of the universe towards justice.”
Or as Pravin Gordan observed in his preface to the book on Lawfare in South Africa “We know from research by MIT Sloan School that countries rise when they put in place the right pro-growth political institutions and they fail-often spectacularly – when those institutions ossify or fail to adapt’ Powerful people always and everywhere seek to grab complete control over government, undermining broader social progress for their own good. Keep those people in check with effective democracy or watch your nation fail.”
The author is a William Nelson Cromwell professor of International and Comparative Law and Elizabeth and Arthur Reich Director, Leo and Arvila Berger International Studies Programme.