IN RE PROSECUTOR-GENERAL, ZIMBABWE ON HIS CONSTITUTIONAL INDEPENDENCE AND PROTECTION FROM DIRECTION AND CONTROL

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 13-17]

October 28, 2015 

CHIDYAUSIKU CJ, ZIYAMBI, GWAUNZA, GARWE, GOWORA, HLATSHWAYO,
PATEL, MAVANGIRA AND UCHENA JJCC

Constitutional Law – Constitution of Zimbabwe, 2013 – Prosecutor-General
– Section 260 – Prosecutor-General being independent and not subject to the direction or control of anyone – Meaning of – Whether independent from the courts – Duty of the Prosecutor-General to obey court orders.

Constitutional Law – Rule of law – Presumption of validity of every law that has not been declared invalid.

Court – Amici curiae – Costs in favour of – When may be granted.

The applicant, the Prosecutor-General, had been ordered by both the High Court and Supreme Court to issue certificates nolle prosequi in two matters in which he had exercised his discretion not to prosecute. He had not complied with the orders in the two matters but brought this application challenging the constitutionality of those orders on the basis that they violated his independence as provided for in s 260 of the Constitution of Zimbabwe, 2013. He contended that he had absolute independence and could not be ordered by the courts to issue a certificate nolle prosequi.

Held, that the constitutional provision that says that the Prosecutor-General’s independence is “subject to the Constitution” requires the Prosecutor-General to be subject to the law as interpreted by the courts and to obey every order given by the courts pursuant to that law.

Held, further, that the Constitution subjects the Prosecutor-General’s independence to the rule of law. This necessarily imposes a duty on him or her to obey court orders and decisions.

Held, further, that the essence of the rule of law is that where there is a law, it must be complied with. Even a law that is under challenge in the courts must be fully complied with until it is declared invalid.

Held, further, on costs, that while the usual practice was not to award costs in favour of amici curiae, the present matter was so extraordinary as to warrant a departure from the usual practice and award punitive costs.

Cases cited:

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC); [2005] ZACC 3, referred to

Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity & Ors 2004 (1) ZLR 538 (S), referred to

Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity & Ors 2005 (1) ZLR 222 (S), referred to

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680; (1947)
63 TLR 623, referred to

Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour & Social Welfare & Ors 2016 (1) ZLR 268 (S), referred to

National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA), referred to

R v Secretary of State for the Home Department, ex parte Fire Brigades Union & Ors [1995] UKHL 3; [1995] 2 AC 513; [1995] 2 WLR 464; [1995] 2 All ER 244 (HL), referred to

Rogers v Rogers & Anor 2008 (1) ZLR 330 (S), referred to

S v Sengeredo 2014 (2) ZLR 633 (S), referred to

Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), referred to

Telecel Zimbabwe (Pvt) Ltd v Attorney-General 2014 (1) ZLR 47 (S), referred to

Legislation considered:

Constitution of Zimbabwe, 2013 ss 3 (b), 162 (3), 164 (3), 165 (1)(c),
167 (1), 176, 258, 259 (1), 260, 260 (1), (1)(a), (b), 261 (1)

Criminal Procedure and Evidence Act [Chapter 9:07] ss 13, 16, 16 (1)

National Prosecuting Authority Act [Chapter 7:20] s 12 (1)(d)

Book cited:

Rautenbach IM and Malherbe EFJ Constitutional Law (4th edn, LexisNexis Butterworths, Durban, 2004) at p 78

T Mpofu and S Hashiti, for the applicant

T Mafukidze, as the first amicus curiae

C Warara, as the second amicus curiae

PATEL JCC:

After hearing counsel in this matter, we handed down the following order:

“It is ordered that:

1. The application be and is hereby dismissed with costs on a legal practitioner and client scale in favour of both amici curiae.

2. It is apparent from the record of these proceedings that orders were issued by the High Court in Case No. HC 10203/12 and by the Supreme Court in Judgment No. SC1/14 which was confirmed by this Court in Case Number CCZ 8/14.

3. It is also apparent that the applicant has disobeyed those orders in clear contravention of s 164 (3) of the Constitution of Zimbabwe.

4. In terms of s 165 (1)(c) of the Constitution of Zimbabwe, this Court is obligated to uphold the rule of law and to make such orders as are necessary to achieve that purpose in accordance with its inherent jurisdiction.

5. It is accordingly ordered that:

(i) The applicant is committed to imprisonment for a period of 30 days the whole of which is suspended on condition that the applicant complies with the above orders of the High Court and the Supreme Court by issuing the requisite certificates nolle prosequi within 10 days of the date of this order.

(ii) In the event that the applicant fails to comply with this order, he shall in his personal capacity be barred from approaching or appearing as a legal practitioner in any court in Zimbabwe.

6. Full reasons for judgment will follow in due course.”

These are the reasons for the aforestated order.

Background

This is an ex parte application brought by the Prosecutor-General, duly appointed in terms of the Constitution of Zimbabwe, 2013 (“the Constitution”), for the determination of the question of his constitutional independence and protection from the direction and control of anyone in terms of ss 258,
259 (1) and 260 of the Constitution. It is important to put this application into perspective by looking at the background facts that explain the question to be determined by this Court.

The applicant has brought this application pursuant to orders granted by the High Court and the Supreme Court requiring him to issue certificates nolle prosequi in two matters in which he exercised his discretion not to prosecute. The first of these cases was brought as an application under HC 10203-12 by one Francis Maramwidze against the Commissioner-General of the Zimbabwe Republic Police and the Prosecutor-General, seeking an order directing the prosecution of one Dr Munyaradzi Kereke or, alternatively, a certificate nolle prosequi. In this matter, allegations had been made that Kereke had sexually assaulted a minor child whose guardian was Maramwidze. On the same day, on 3 March 2014, Zhou J granted Maramwidze the alternative relief he sought by ordering the applicant to grant him a certificate nolle prosequi in terms of
s 16 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”).
On 14 May 2014, the written reasons for judgment were delivered by the learned judge in HH 208-14.

The applicant has not complied with that order given by Zhou J as at the hearing of this application. Maramwidze brought a contempt of court application against the applicant under HC 480-15 on 20 January 2015, which application is opposed by the applicant. The basis of his opposition in that matter is that the order of Zhou J is unconstitutional as s 260 of the Constitution makes him absolutely autonomous in the discharge of his prosecutorial functions and exercise of prosecutorial discretion and that such exercise is not susceptible to judicial review. On 16 October 2014, the Supreme Court struck off an appeal by Kereke which sought to have the order by Zhou J directing the issuance of the certificate nolle prosequi set aside. The applicant himself did not appeal against the order or judgment given by Zhou J and, even though the appeal by Kereke was dismissed, he has persistently refused to comply with the judgment of the High Court.

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