Chapter 3 - Prosecution at Public Instance

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Prosecution at public instance 3—1

CHAPTER 3

PROSECUTION AT PUBLIC INSTANCE


Section Page

1. Prosecutions in the name of “The State” ....................................................................... 3—1

2. Law officers and their powers


(1) Attorney-General .................................................................................................. 3—1
(2) other law officers ................................................................................................... 3—2
(3) delegated powers ................................................................................................... 3—3
(4) other powers .......................................................................................................... 3—3
(5) role in investigation of offences ............................................................................ 3—4
(6) dismissal or removal from office of law officers .................................................. 3—4

3. Public prosecutors
(1) appointment ........................................................................................................... 3—5
(2) powers ................................................................................................................... 3—5
(3) conduct and ethics ................................................................................................. 3—5
(4) public prosecutors as witnesses at trials ............................................................... 3—6

4. The decision to prosecute


(1) Attorney-General’s discretion ............................................................................... 3—7
(2) factors to consider
(a) sufficiency of evidence ................................................................................. 3—7
(b) special factors: immunity, jurisdiction, prescription .................................... 3—8
(c) choice of offence to charge ......................................................................... 3—10
(d) plea bargaining ............................................................................................ 3—10
(3) declining to prosecute ......................................................................................... 3—11

5. Prosecutor’s failure to appear ...................................................................................... 3—12

1. PROSECUTIONS IN THE NAME OF “THE STATE”

The wording of s 5 of the CP&EA implies that prosecutions in Zimbabwe are instituted in the
name of Zimbabwe, but in practice they are instituted in the name of the “State”.1 Criminal cases
are cited as “S” or “The State” versus the accused.

2. LAW OFFICERS AND THEIR POWERS

(1) ATTORNEY-GENERAL

The principal Law Officer is the Attorney-General. In terms of s 76(2) of the Constitution, he is
appointed by the President, after consultation with the Judicial Service Commission.
1 CP&EA s 5.
3—2 Criminal Procedure in Zimbabwe

Until 1989 he was a member of the Public Service, but since March 19892 his status has been
enhanced. He is specifically made principal legal adviser to the Government3 and his office has
been removed from the Public Service. His qualifications were not previously specified, but now
the Attorney-General must be qualified for appointment as a judge of the Supreme Court or High
Court.4 He is ex officio a member of the Cabinet5 and has the right to sit in and address the House
of Assembly,6 but has no right to vote in either.7

His powers are set out in both the Constitution and in the CP&EA.

All powers, authorities and functions relating to the prosecution of crimes and offences8 in the
name of the State are vested in the Attorney-General.9 These powers do not, however, extend to
prosecutions in courts established by disciplinary laws.10 The Constitution also formally empowers
the Attorney-General to prosecute and defend appeals from any determination in criminal
proceedings (other than proceedings in courts established by disciplinary laws).11 He may also
direct the Commissioner of Police to investigate and report to him on any matter which, in his
(the Attorney-General’s) opinion, relates to any criminal offence or alleged or suspected criminal
offence.12 The Commissioner is obliged to comply with such a direction.

In the exercise of his powers in respect of criminal proceedings, the Attorney-General is not
subject to the direction or control of any person or authority.13

(2) OTHER LAW OFFICERS

The President also appoints other law officers: one or more Deputy Attorneys-General14 and the
Director of Public Prosecutions (DPP).15 The Deputy Attorney-General’s qualifications are the
same as the Attorney-General’s.16 His functions are:

• to assist the Attorney-General and perform other functions assigned to him;

• to act as Attorney-General whenever the post of Attorney-General is vacant or if the


Attorney-General is unable to perform his functions.17

2 Constitution Amendment Act 4 of 1989.


3 Constitution s 76(1).
4 Constitution s 76(3a).
5 Constitution s 76(3b).
6 Constitution s 47(2).
7 Constitution ss 47(2) and 76(3b).
8 Although the section appears to distinguish between “crimes” and “offences”, it is submitted that the words are
synonymous.
9 Constitution s 76(4)(a).
10 As defined in s 113 of the Constitution; effectively in Zimbabwe this means courts martial, trials by police officers’
boards and prison trials.
11 Constitution s 76(4)(a).
12 Constitution s 76(4a).
13 Constitution s 76(7). But as an ex officio member of the Cabinet his theoretical independence must surely be severely
limited.
14 Constitution s 76.
15 CP&EA s 7.
16 Constitution s 76(11).
17 Constitution s 76(12) and (13).
Prosecution at public instance 3—3

A Deputy Attorney-General who acts as Attorney-General is not, however, an ex officio member


of the Cabinet,18 nor is he entitled to address the House of Assembly.

The powers of the DPP are not specified in the CP&EA but in practice he is a delegate of the
Attorney-General.

(3) DELEGATED POWERS

It would be impossible for the Attorney-General personally to supervise all criminal prosecutions.
His powers under s 76(4) of the Constitution and under s 6 of the CP&EA may be, and are,
delegated.19 A delegate of the Attorney-General must be a legal practitioner entitled to practise
in Zimbabwe.20 The maxim delegatus non potest delegare does not apply to a delegate of the
Attorney-General: he may further delegate the powers delegated to him.21

While a delegate for the purposes mentioned above must be a legal practitioner, not all delegates
of the Attorney-General need be. The Attorney-General may delegate any person to appear on
his behalf at any preparatory examination or to conduct any criminal prosecution. While in practice
delegates who appear in the High Court or Supreme Court are usually legal practitioners, there is
no requirement for them to be so.22 If the person appointed by the Attorney-General fails to
appear, the court may designate some fit and proper person to do so.23

(4) OTHER POWERS

Other powers are specifically given to the Attorney-General (or his delegate). These include:

(1) authorising prosecutions under certain statutes eg the Law and Order (Maintenance) Act
[Chapter 11:07];

(2) authorising the institution of preparatory examinations and deciding what course to take
after a preparatory examination has been concluded;24

(3) stopping, before judgment, any prosecution initiated or taken over by him;25

(4) consenting to bail in certain cases;26

(5) liberating a person who has been committed to prison for further examination, sentence
or trial, but not a person who has been convicted and sentenced;27

18 Constitution s 76(13).
19 Constitution s 76(5); CP&EA s 6.
20 CP&EA s 6(1).
21 CP&EA s 6(2)(b).
22 See In re Masterson 1974 (1) RLR 138 and ex parte Masterson 1974 (2) RLR, where a former advocate, who had
been employed in the Attorney-General’s Office, was seeking exemption from the requirement to serve a period of articles
for admission as an attorney. He claimed that he had practised as an advocate during that time by virtue of his appearances
as a prosecutor in the High Court. It was held that because the CP&EA did not require him to be an advocate he had not
practised as one and thus was not eligible for exemption from articles.
23 CP&EA s 8.
24 CP&EA ss 65 and 68(1).
25 Constitution s 76(4)(c); CP&EA s 9.
26 CP&EA s 116; see also Chapter 6, below.
27 CP&EA s 10.
3—4 Criminal Procedure in Zimbabwe

(6) withdrawing a charge before plea;28

(7) directing the venue of proceedings;

(8) directing what is to be done when a case is stopped in terms of s 58 of the MCA;

(9) taking over private prosecutions.29

(5) ROLE IN INVESTIGATION OF OFFENCES

While, as mentioned above, the Attorney-General may direct the Commissioner of Police to
investigate criminal offences,30 neither he nor his staff play any direct part in such investigations.
His role is purely advisory.

(6) DISMISSAL OR REMOVAL FROM OFFICE OF LAW OFFICERS

The Attorney-General or any deputy Attorney-General may only be removed from office for
inability to discharge the functions of his office or for misbehaviour. The cause of the inability
may be infirmity of the body or mind or any other reason.31 If the question of removing the
Attorney-General or a deputy Attorney-General arises, the President may suspend him from office.
A tribunal must then be appointed to investigate the allegations against him. The tribunal consists
of a chairman who is, or has been, a judge of the Supreme Court or High Court, and two other
members, at least one of whom is a person who is or has been for at least seven years qualified as
a legal practitioner32 in Zimbabwe.33 If the tribunal advises the President that the Attorney-General
or a deputy Attorney-General be removed from office, the President is obliged to remove him.34

Any suspension of the Attorney-General or a Deputy Attorney-General may be revoked at any


time by the President and in any case ceases to have effect if the Tribunal advises the President
that the person should not be removed.35

The meaning of “misbehaviour” in this context is presumably similar to that applicable to the
removal of judges.36

Other law officers are members of the Public Service. Consequently, although the Director of
Public Prosecutions may presumably be removed from his post by the President, he would not
cease to be a public servant unless the normal procedures for dismissal of a public servant from
the Service were followed.

28 CP&EA s 320(3).
29 See Chapter 4.
30 Constitution s 76(4a).
31 Constitution s 110(2).
32 This includes time qualified as an advocate or attorney, before the enactment of the Legal Practitioners Act [Chapter
27:07] in 1981.
33 Constitution s 110(5).
34 Constitution s 110(4).
35 Constitution s 110(4).
36 See Chapter 2, above.
Prosecution at public instance 3—5

3. PUBLIC PROSECUTORS

(1) APPOINTMENT

Prosecutions at magistrates courts level are usually conducted by public prosecutors. Public
prosecutors are representatives of the Attorney-General,37 but not necessarily his delegates. The
normal method of appointment is by a document in writing, signed by the Attorney-General,
appointing the individual named therein as a public prosecutor for a particular magisterial province
or regional division.

Most public prosecutors are civilians and members of the Public Service, but police officers may
be and are appointed as public prosecutors. A police officer may be appointed personally or ex
officio, as where the member for the time being in charge of a particular police station is appointed
as a public prosecutor at the local magistrates court.

While prosecuting, a police officer is acting as a representative of and is subject to the directions
of the Attorney-General, rather than the Commissioner of Police. There may sometimes be an
apparent conflict of interest, for the roles of policeman and prosecutor are not identical.38

(2) POWERS

The powers and duties of a public prosecutor are to prosecute all offences which the magistrates
court to which he is attached has jurisdiction to try39 and, if specifically authorised, to conduct
preparatory examinations.40 He may also withdraw charges before plea41 and after plea.42

(3) CONDUCT AND ETHICS

Most public prosecutors are not admitted as legal practitioners but nevertheless are expected to
conduct themselves in accordance with the ethics of the legal profession.43 The comments of
Avory J in R v Banks [1916] 2 KB 621 are as applicable to public prosecutors at the magistrates
courts as they are to prosecuting counsel at the High Court:

“ Counsel for the prosecution throughout a case should not struggle for a verdict against
the prisoner, but they ought to bear themselves rather in the character of ministers of
justice assisting the administration of justice.”

The prosecutor’s function, then, is not to secure a conviction at all costs.44 He should ensure that
all relevant facts, including those favourable to the accused, are placed before the court. He

37 CP&EA s 11.
38 Prosecutor’s Handbook 3 ed p 3.
39 CP&EA s 11.
40 CP&EA s 68(1).
41 CP&EA s 320(3).
42 Section 9 of the CP&EA does not specifically give a public prosecutor the power to withdraw a charge after plea, but
he is presumably entitled to do so as representative of the Attorney-General.
43 Prosecutors Handbook 3 ed Chapter 1.
44 Or, as Douglas J picturesquely expressed it in Donnelly v De Christoforo 416 US 637 (1974) at 648-9, it is not “to tack
as many skins of victims as possible to the wall” (cited in Pannick Advocates at p 114).
3—6 Criminal Procedure in Zimbabwe

should present those facts in a fair, dispassionate, firm and clear manner. This does not mean that
he is confined to an impartial statement of the evidence. He is an advocate for the State, and it is
entirely proper for him to persuade the court, as earnestly as he can, of the truth of his case.45
While he should present the State case firmly, even vigorously (for, objectively, it is as much a
miscarriage of justice for a guilty man to be acquitted as it is for an innocent man to be convicted,
even if society is more prepared to tolerate the former), he should not feel that he or the State has
“lost” if the accused is acquitted. The State does not “lose” if one of its citizens is acquitted on a
criminal charge — unless the acquittal is due to the ineptness of the prosecution.

In S v Ndlovu S-195-90 (not reported) Gubbay CJ referred to “the high ideals of fairness and
propriety normally displayed in the conduct of criminal proceedings in this country ... [which]
judicial officers and accused persons are accustomed to expect from the Attorney-General’s
representatives”. He continued:

“ [P]ersonal animosity and feelings must be put to one side. If a prosecutor feels that he is
unable to remain dispassionate, then he should request that he be replaced by another. It
is not the prosecutor’s duty to obtain a conviction at all costs, but to prosecute fairly with
the object of ascertaining the truth. He must dedicate himself to the achievement of
justice. He must be fair in the presentation of his case. He must not press unjustly for a
conviction. If he knows of a point in favour of the accused, he must bring it out. If he
knows of a credible witness who can speak of facts which go to show the innocence of
the accused he must himself call the witness if the accused is unrepresented or, if
represented, tender the witness to the defending practitioner. If his own witness
substantially departs from his proof, the prosecutor must, unless there is special and
cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal
the seriously contradictory passage in the proof to the defending practitioner.46 The court
has the right to expect that the prosecutor will act in this way for to act otherwise would
be subversive to criminal justice.”

The prosecutor’s relationship with the magistrate is dealt with below in Chapter 16.

(4) PUBLIC PROSECUTORS AS WITNESSES AT TRIALS

A public prosecutor is competent to give evidence as a witness in a case he is prosecuting. However,


such a course should be avoided wherever possible, particularly if it would involve the magistrate
having to make findings of credibility. The prosecutor, as pointed out above, has a duty to present
his case with fairness to the accused. This would be difficult if he is a witness who is involved in
the case in other than a peripheral manner.47 Appearances by public prosecutors as witnesses
should be limited to matters of proving mere formalities.48

It is hard to imagine a situation where a civilian prosecutor would need to give evidence in a case
in which he was prosecuting; and there should rarely now be any need for a policeman to both
investigate and prosecute a case. In days gone by, though, it was unavoidable.49 If, however, no-

45 Per Learned Hand J in Di Carlo v US 6 F 2d 364 (1925) at 368, cited in Pannick op cit at pp 115-116.
46 This matter is dealt with in detail in Chapter 18.
47 Hoffmann & Zeffertt p 378.
48 Lansdown & Campbell p 116.
49 See, for example, R v van Rensburg 1930 SR 119.
Prosecution at public instance 3—7

one who is not a potential witness can be found to prosecute, care should be taken that the
prosecutor gives his evidence in the proper manner, under oath, and subject to cross-examination.
It is grossly irregular for him to give unsworn evidence by making a statement from the bar.50

4. THE DECISION TO PROSECUTE

(1) ATTORNEY-GENERAL’S DISCRETION

While the decision as to whether to prosecute or not rests with the Attorney-General or his delegate,
and is not subject to interference from any other person,51 there are nevertheless certain basic
principles to be observed.

The Attorney-General’s duty is to enforce the law of the land, impartially. In this matter he is, as
Lord Denning put it, the servant of no-one, save of the law itself. He is answerable to the law and
to the law alone.52

The decision to prosecute a person is not a trivial matter. It brings many consequences to the
person and his family.

“ In some cases it opens him to interdiction; in all cases it creates anguish and anxiety to
the person against whom such a decision has been taken and his relatives; and, in some
cases, the mere decision to prosecute brings an instant stigma on the individual which an
acquittal may not easily remove.”53

A person should not, then, be subjected to this treatment in response to public or media or
Parliamentary pressure. The public and the media and members of Parliament are often quite
ignorant of the facts and law involved and may even be motivated by improper considerations. It
was said by Lord Birkenhead, who was at one time the Attorney-General of Great Britain and
later became Lord Chancellor, that the Attorney-General’s decision is to be taken, not as a minister
(that is, for political reasons) but as a judge.54 The latter comment is not literally true, for the
Attorney-General is not a judge, but what must be emphasized is the character of fairness and
independence that must be shown by the Attorney-General in the performance of his functions.

(2) FACTORS TO CONSIDER

(a) Sufficiency of evidence

A prima facie case is one in which, according to the evidence available, the accused is apparently
guilty of the crime charged. At the very least a prima facie case must exist before a prosecution
would be justified.

50 Hoffmann & Zeffertt p 378.


51 See above, section 2(1); Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G);
1966 (2) SA 1 (R).
52 R v Metropolitan Police Commissioner ex p Blackburn (1) [1968] 2 QB 118.
53 From an address by the Hon Mr Justice E Olayinka Ayoola, Chief Justice of The Gambia, at the Conference of
African Directors of Public Prosecutions, held at Banjul on 26 March 1991; reported in (1991) 17 Commonwealth Law
Bulletin p 1032 at 1033
54 Edwards Law Officers of the Crown (1964) p 207, quoted by Ayoola CJ op cit at p 1034
3—8 Criminal Procedure in Zimbabwe

(b) Special factors: immunity, jurisdiction, prescription

Other factors in the decision to prosecute include —

(i) immunity
Immunity can arise in several ways.
(a) The President, while in office, is not personally liable to any civil or criminal proceedings.
However, he may be prosecuted after he ceases to be President for acts done before he
assumed or while he was in office.55
(b) Diplomatic immunity is granted under the Privileges and Immunities Act [Chapter 3:03].
In terms of the Vienna Convention on Diplomatic Relations, certain articles of which
have the force of law in Zimbabwe by virtue of s 3 of the Act, a diplomatic agent56 has
immunity from the criminal jurisdiction of Zimbabwe, as do members of his family
forming part of his household (unless they are nationals of Zimbabwe)57 and members of
the administrative and technical staff of a diplomatic mission, together with members of
their families forming part of their respective households (again, unless they are nationals
of Zimbabwe).58
The immunity of consular officials is not absolute. They enjoy a privileged status
somewhere between that of diplomats and that of ordinary aliens.59 Such officials may
be arrested and detained pending trial, but only in respect of “grave” crimes and pursuant
to a decision by a competent judicial authority.60 They may also be committed to prison
in execution of a judicial decision of final effect.61
The immunity of diplomatic and consular officials should not be confused with the
immunity of a foreign government from the jurisdiction of the municipal courts. In some
circumstances, foreign governments may be sued in the Zimbabwean courts: Barker
McCormac v Government of Kenya 1983 (2) ZLR 72 (S).
Allied to this question is the situation of persons who take refuge in diplomatic missions.
Persons not entitled to diplomatic immunity who commit offences in or from the premises
of a diplomatic agent are subject to the jurisdiction of the criminal courts and should be
handed over.62 If they are not handed over, the local police do not have any right to enter
the diplomatic premises to effect an arrest; the matter would then become one to be
settled politically between the governments concerned. Similarly, diplomatic asylum —
the grant of protection within diplomatic premises to a fugitive from local justice — has
never been recognized in South African practice. Again, though, if a person was given
refuge in a diplomatic mission, the matter would have to be settled politically; the premises
themselves would remain inviolate.63
55 Constitution s 30.
56 That is, the head of a diplomatic mission or a member of the diplomatic staff of the mission: Article 1(e).
57 Article 37.1.
58 Article 37.2.
59 Manual of International Law ed Max Sørensen (1968) pp 417-417.
60 Article 41.1. This would mean that it would not be competent for the police to detain a consular official before
bringing him before the courts.
61 Article 41.2. Presumably this would mean that a consular official, if sentenced to a term of imprisonment, could not be
committed to prison until the sentence was confirmed by the Supreme Court.
62 Landown and Campbell p 29.
Prosecution at public instance 3—9

(c) Parliamentary immunity is very limited in Zimbabwe.64 A member or officer of Parliament


is liable to prosecution if he has committed a crime. Where civil proceedings are brought
against a member or officer of Parliament, they may not be held or brought to trial
elsewhere than at the seat of Parliament while the member or officer is in attendance on
Parliament or a committee thereof.65 A member of Parliament who is convicted and
sentenced to death or to imprisonment for six months or more ceases forthwith to exercise
his functions as a member and to receive any remuneration. His seat becomes vacant
thirty days from the date of sentence.66 It is possible that an attempt to arrest a member or
officer of Parliament within the precincts of Parliament would be regarded as a contempt
of Parliament, but this is not clear.67
(d) Accomplices who have given satisfactory evidence for the State are not liable to be
prosecuted for the offence about which they have given evidence.68 There are certain
requirements to be fulfilled before such immunity can arise:
(i) the prosecutor must inform the court that the witness has, in his opinion been an
accomplice in the commission of the offence;
(ii) the accomplice must fully answer to the satisfaction of the court all lawful questions
which may be put to him.
Where the accomplice has given satisfactory evidence at a preparatory examination but
at the subsequent trial or at a re-opened preparatory examination either refuses to answer
questions or fails to answer them satisfactorily, any immunity he might have acquired
will cease to be of effect.
(e) Members of the Security Forces69 used to be immune from liability for prosecution for
anything done by them in good faith for the purposes of on in connection with the
preservation of the security of Zimbabwe.70 With the repeal of the state of emergency in
1990, this immunity no longer exists. A member of the Defence Forces, even if he has
already been convicted and punished by a military court, is not immune from prosecution
in the civil courts on charges arising from the acts for which he was previously tried by
court martial and cannot plead autrefois convict or acquit on those grounds.71

(ii) jurisdiction
The question of territorial jurisdiction has been dealt with in Chapter 2. Even where the courts of
Zimbabwe have territorial jurisdiction over a particular offence, the sentencing jurisdiction of a
particular court will be a factor in the decision as to whether that court should be the forum for the
trial.

(iii) prescription
For most offences, the right of prosecution lapses after twenty years, although for murder there is

63 Lansdown and Campbell pp 29-30.


64 As it is in Britain: O Hood Phillips Constitutional and Administrative Law 7 ed pp 241-2.
65 Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], s 7(3).
66 Constitution s 42(1).
67 O Hood Phillips op cit p 244.
68 CP&EA s 267.
69 That is, members of the Defence Forces, the Police Force, the Prison Service and the Central Intelligence Organization.
70 Emergency Powers (Security Forces Indemnity) Regulations 1982, s 4(1).
71 Constitution s 18(6) and (13)(d); Defence Act s 47(1); and see Chapter 2 above.
3—10 Criminal Procedure in Zimbabwe

no prescriptive period.72 Other statutes may provide different prescriptive periods. For example,
s 50(2) of the Road Traffic Act [Chapter 13:11] provides that no person shall be convicted of an
offence under s 50(1) (speeding) unless he was warned at the time the offence was committed
that a prosecution would be considered, or within fourteen days of the commission of the offence,
a summons or a notice of intended prosecution was served on him.

(C) CHOICE OF OFFENCE TO CHARGE

One act may constitute more than one offence. The most appropriate charge should be selected.73
While the Attorney-General’s discretion is absolute in this regard, the selection of an inappropriate
charge for improper reasons will deservedly earn the censure of the court and, in cases sent for
automatic review, the withholding of a certificate that the proceedings were “in accordance with
real and substantial justice”.74 There are, however, situations where it would be proper to charge
a less serious offence than is disclosed by the evidence. The factors to consider would be similar
to those when the accused tenders a plea of guilty to an offence less serious than that charged.
This is dealt with in the following section.

(D) PLEA BARGAINING

While plea bargaining in the American sense does not fully exist in Zimbabwe, it is by no means
unusual for legal practitioners either:
(a) to ask the Attorney-General or public prosecutor to bring a less serious charge than is
disclosed by the evidence;
or
(b) to offer a plea of guilty to a less serious offence than that actually charged.

Whether the Attorney-General should in any given case bring the lesser charge or accept the plea
to the lesser offence will depend on a number of factors. It would be improper for him to do so
where the result will be that the accused will escape a sentence which he otherwise would be
liable to. For example, if, in a case of alleged drunken driving, there is incontrovertible evidence
that the accused’s blood/alcohol level was such as to give rise to the presumption that he was
incapable of having proper control of his vehicle, it would be improper to accept a plea of guilty
to driving while his blood/alcohol level exceeded 80 mg/100 ml, because he would thereby escape
the mandatory penalty of prohibition from driving.75 If, on the other hand, the evidence is less
than convincing, the Attorney-General might properly agree to charge the less serious offence.

Some of the considerations would be:

(a) Does the evidence satisfactorily establish the more serious charge?

(b) How long will the trial take if the more serious charge is preferred?

(c) How many other cases are on the roll? Will the persons involved in those cases be seriously
inconvenienced if their cases have to be postponed?

72 CP&EA s 23.
73 S v Muvhaki 1985 (1) ZLR 252.
74 S v Chidodo 1988 (1) ZLR 299 (H).
75 S v Mpofu 1983 (2) ZLR 118 (H).
Prosecution at public instance 3—11

(d) If the case is postponed to a date where a full trial on the more serious charge would be
possible, what inconvenience and expense would be caused to all concerned?
(e) What is the likely sentence? If the accused would either way receive an appropriate
sentence, the actual charge assumes less importance. The existence of previous convictions
would also be relevant.

The accused’s position in society or the fact that he works for a particular Government department
are minor or irrelevant factors; all persons should be equal before the law.76

(3) DECLINING TO PROSECUTE

The Attorney-General may decline to prosecute a case presented to him by the Police. An obvious
— and the most usual — reason for declining to prosecute is that no prima facie case is disclosed
by the evidence. Similarly, the Attorney-General may decline to prosecute on the grounds that no
offence is disclosed by the facts.

Even where a prima facie case is presented by the police, it does not necessarily have to be
pursued. There is no rule that criminal offences must automatically be the subject of prosecution.
It is perfectly proper, in some circumstances, to decline to prosecute in spite of the existence of a
prima facie case. The dominant consideration should be whether a prosecution is in the public
interest.77

Factors to consider in this regard include:


(a) the triviality of the offence. Even if the maxim de minimis not curat lex is not strictly
applicable, the triviality of the offence may be such as to make a prosecution pointless;
(b) the staleness of the offence, even if the prescription period has not lapsed. The seriousness
or triviality of the offence would also be relevant in this regard;
(c) the age or infirmity of accused. If the accused is very old or infirm, little good and much
harm may be achieved by a prosecution; if the accused is very young, it may be more
appropriate to deal with the case informally;
(d) the complainant’s attitude. Once a complaint has been made, the Police and the Attorney-
General are responsible for the matter. The public interest then becomes the decisive
factor. Nevertheless, the complainant’s attitude is important. If the complainant indicates
a wish to withdraw his complaint, the Attorney-General should consider his reasons for
so requesting. The wish to avoid the inconvenience of attending court is of little
consequence; but the relationship between the accused and complainant may well be
such that if the Attorney-General were to insist on prosecuting more harm would be
done than good;
(e) the fact that the accused has already been sufficiently punished. For example, it would
probably be inappropriate to prosecute a person who had caused a traffic accident in
which he had himself been severely injured or in which he had caused the death of someone

76 S v Chidodo supra.
77 S v Hamadziripi 1989 (2) ZLR 38 (H); Emmins pp 17-18.
3—12 Criminal Procedure in Zimbabwe

very close to him. Nothing would be achieved by such a prosecution, since the accused
has suffered more punishment than any court could inflict;78
(f) the need to use the accused as a witness;
(g) mental illness or stress. If there is medical evidence that the accused is suffering from a
mental illness that would be significantly worsened by the strain of standing trial, that
may be a reason not to prosecute or to discontinue a prosecution. This situation should
be distinguished from that where the accused becomes depressed through the knowledge
that his wrongdoing has been found out. Physical illness which is likely to prevent the
accused from attending court in the foreseeable future may also be a reason not to
prosecute.79

If the decision is made not to prosecute, the charge should be withdrawn as soon as possible.
Provided that the charge is withdrawn before the accused has pleaded to it, the Attorney-General
is entitled to bring fresh charges arising out of the same incident.80 He is not estopped from doing
so, although it is submitted that it is ethically undesirable that he should, having formally told the
accused that no charges will be brought, later change his mind.

Comment

An example of where the Attorney-General might legitimately change his mind is where he
declines to prosecute, a private prosecution is instituted at the instance of an interested
party, and the Attorney-General takes over the prosecution. See, too, R v Harris [1991] 1
HKLR 389, where the Hong Kong Court of Appeal upheld (though not, it would seem,
without some misgivings) the right of the Attorney-General of Hong Kong to prosecute a
man whom he had previously declined to prosecute. A great deal of the judgments in that
case was taken up with the question of whether the Attorney-General proceeding after
having previously declined to prosecute constituted an abuse of process, entitling the courts
to interfere. While the courts in the common law countries have the power to safeguard
their process from abuse, the decision by the Attorney-General to resile from his previous
undertaking was not, in the circumstances, one that could be interfered with. An example
was cited (at p 397) of a case whether immunity from prosecution had been given to a
suspect who then made an incriminating statement. This statement was later used as the
basis for prosecuting the suspect. In this case, the Crown was held to its bargain and the
conviction was set aside.

5. PROSECUTOR’S FAILURE TO APPEAR

If the public prosecutor fails to appear on the day appointed for the trial, the accused may move
the court to discharge him.81 The effect of this provision is unclear, since in practice a substitute
prosecutor would be appointed by the Attorney-General. Even if the Attorney-General failed to
do so, the court could appoint a prosecutor.82 It is submitted that the court should grant the accused’s
application for discharge only if it was clear from all the circumstances that the prosecutor’s
failure to appear was caused by an intention to abandon the prosecution.

78 Insurance companies and legal practitioners acting on behalf of injured parties in traffic accident cases are often
anxious to see that a prosecution takes place. If the accused is convicted, the injured party is in practice relieved of the
burden of establishing the accused’s civil liability. The convenience of third parties must surely be irrelevant to the decision
to prosecute.
79 Emmins p 18. 80 CP&EA s 320(3).
81 CP&EA s 320(1). 82 CP&EA s 8.
Prosecution at public instance 3—13

1 CP&EA s 5.
2 Constitution Amendment Act 4 of 1989.
3 Constitution s 76(1).
4 Constitution s 76(3a).
5 Constitution s 76(3b).
6 Constitution s 47(2).
7 Constitution ss 47(2) and 76(3b).
8 Although the section appears to distinguish between “crimes” and “offences”, it is submitted that the words are
synonymous.
9 Constitution s 76(4)(a).
10 As defined in s 113 of the Constitution; effectively in Zimbabwe this means courts martial, trials by police officers’
boards and prison trials.
11 Constitution s 76(4)(a).
12 Constitution s 76(4a).
13 Constitution s 76(7). But as an ex officio member of the Cabinet his theoretical independence must surely be severely
limited.
14 Constitution s 76.
15 CP&EA s 7.
16 Constitution s 76(11).
17 Constitution s 76(12) and (13).

18 Constitution s 76(13).
19 Constitution s 76(5); CP&EA s 6.
20 CP&EA s 6(1).
21 CP&EA s 6(2)(b).
22 See In re Masterson 1974 (1) RLR 138 and ex parte Masterson 1974 (2) RLR, where a former advocate, who had
been employed in the Attorney-General’s Office, was seeking exemption from the requirement to serve a period of articles
for admission as an attorney. He claimed that he had practised as an advocate during that time by virtue of his appearances
as a prosecutor in the High Court. It was held that because the CP&EA did not require him to be an advocate he had not
practised as one and thus was not eligible for exemption from articles.
23 CP&EA s 8.
24 CP&EA ss 65 and 68(1).
25 Constitution s 76(4)(c); CP&EA s 9.
26 CP&EA s 116; see also Chapter 6, below.
27 CP&EA s 10.

28 CP&EA s 320(3).
29 See Chapter 4.
30 Constitution s 76(4a).
31 Constitution s 110(2).
32 This includes time qualified as an advocate or attorney, before the enactment of the Legal Practitioners Act [Chapter
27:07] in 1981.
33 Constitution s 110(5).
34 Constitution s 110(4).
35 Constitution s 110(4).
36 See Chapter 2, above.

37 CP&EA s 11.
38 Prosecutor’s Handbook 3 ed p 3.
39 CP&EA s 11.
40 CP&EA s 68(1).
41 CP&EA s 320(3).
42 Section 9 of the CP&EA does not specifically give a public prosecutor the power to withdraw a charge after plea, but
he is presumably entitled to do so as representative of the Attorney-General.
43 Prosecutors Handbook 3 ed Chapter 1.
44 Or, as Douglas J picturesquely expressed it in Donnelly v De Christoforo 416 US 637 (1974) at 648-9, it is not “to tack
as many skins of victims as possible to the wall” (cited in Pannick Advocates at p 114).
3—14 Criminal Procedure in Zimbabwe

45 Per Learned Hand J in Di Carlo v US 6 F 2d 364 (1925) at 368, cited in Pannick op cit at pp 115-116.
46 This matter is dealt with in detail in Chapter 18.
47 Hoffmann & Zeffertt p 378.
48 Lansdown & Campbell p 116.
49 See, for example, R v van Rensburg 1930 SR 119.

50 Hoffmann & Zeffertt p 378.


51 See above, section 2(1); Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G);
1966 (2) SA 1 (R).
52 R v Metropolitan Police Commissioner ex p Blackburn (1) [1968] 2 QB 118.
53 From an address by the Hon Mr Justice E Olayinka Ayoola, Chief Justice of The Gambia, at the Conference of
African Directors of Public Prosecutions, held at Banjul on 26 March 1991; reported in (1991) 17 Commonwealth Law
Bulletin p 1032 at 1033
54 Edwards Law Officers of the Crown (1964) p 207, quoted by Ayoola CJ op cit at p 1034

55 Constitution s 30.
56 That is, the head of a diplomatic mission or a member of the diplomatic staff of the mission: Article 1(e).
57 Article 37.1.
58 Article 37.2.
59 Manual of International Law ed Max Sørensen (1968) pp 417-417.
60 Article 41.1. This would mean that it would not be competent for the police to detain a consular official before
bringing him before the courts.
61 Article 41.2. Presumably this would mean that a consular official, if sentenced to a term of imprisonment, could not be
committed to prison until the sentence was confirmed by the Supreme Court.
62 Landown and Campbell p 29.

63 Lansdown and Campbell pp 29-30.


64 As it is in Britain: O Hood Phillips Constitutional and Administrative Law 7 ed pp 241-2.
65 Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], s 7(3).
66 Constitution s 42(1).
67 O Hood Phillips op cit p 244.
68 CP&EA s 267.
69 That is, members of the Defence Forces, the Police Force, the Prison Service and the Central Intelligence Organization.
70 Emergency Powers (Security Forces Indemnity) Regulations 1982, s 4(1).
71 Constitution s 18(6) and (13)(d); Defence Act s 47(1); and see Chapter 2 above.
72 CP&EA s 23.
73 S v Muvhaki 1985 (1) ZLR 252.
74 S v Chidodo 1988 (1) ZLR 299 (H).
75 S v Mpofu 1983 (2) ZLR 118 (H).

76 S v Chidodo supra.
77 S v Hamadziripi 1989 (2) ZLR 38 (H); Emmins pp 17-18.
78 Insurance companies and legal practitioners acting on behalf of injured parties in traffic accident cases are often
anxious to see that a prosecution takes place. If the accused is convicted, the injured party is in practice relieved of the
burden of establishing the accused’s civil liability. The convenience of third parties must surely be irrelevant to the decision
to prosecute.
79 Emmins p 18. 80 CP&EA s 320(3).
81 CP&EA s 320(1). 82 CP&EA s 8.

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