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On Wednesday 28 October 2015 the country’s apex court, the Constitutional Court, ruled to commit Zimbabwe’s Prosecutor-General Mr Johannes Tomana to prison for 30 days for contempt of court. The sentence was wholly suspended conditional upon his compliance with the Constitutional Court’s order within 10 days.
The Chidyausiku CJ-led full bench of 9 judges was unanimous in finding that Mr Tomana was in contempt of court for disobeying the orders of the High Court and the Supreme Court by refusing to grant certificates of private prosecution to Telecel Zimbabwe and a Harare man, Mr Francis Maramwidze, despite being ordered to do so. The Prosecutor-General approached the Constitutional Court on an ex-parte basis in Constitutional Application CCZ No. 08 of 2015.*
Briefly, the facts of the matter are as follows. Telecel Zimbabwe approached the courts and was successfully in being granted an order to privately prosecute its former Board Member Ms Jane Mutasa over alleged misappropriation of airtime to the value of US$1.7 million. Mr Francis Maramwidze on the other hand was successful in his bid to get an order to privately prosecute Bikita West Member of Parliament Dr Munyaradzi Kereke for raping his relative’s 11 year old daughter at gunpoint. The orders stated were granted by the High Court in case number HC10203/12, by the Supreme Court in case number 1/2014 and confirmed by the Constitutional Court in case number CCZ8/14. It is the Telecel matter that went all the way to the Constitutional Court, whereas Mr Maramwidze’s order was granted by the High Court.
Despite committal of public officials for contempt of court being sound at law, this ruling is an unprecedented move in Zimbabwe, more so in respect of a high ranking government official in the form of the country’s head of prosecutions. This decision is even more important for the fact that our young Constitutional Court is slowly beginning to pick up on its fundamental role of developing constitutionalism and constitutional jurisprudence in Zimbabwe.
The Prosecutor-General sought an order to the effect that the he has the sole powers and discretion to issue certificates of private prosecution. He argued that directing the Prosecutor-General to issue certificates of private prosecution is tantamount to breach of his constitutional independence and protection from the control of everyone. He further argued that the courts or any arm of government cannot compel him to issue certificates of private prosecution. He premised his arguments on the doctrine of separation of powers, submitting that his prosecutorial discretion was not susceptible to judicial review and was beyond the province of the court’s review.
This judgment has some important consequences. First, it stamps the constitutional authority of the judiciary, and in particular the Constitutional Court, to reign in on those who disobey court orders. Second, it renews the faith of many in the rule of law in Zimbabwe and the ability of the judiciary to apply the Constitution and the law on all in contempt. Thirdly, it sets the record straight on the question raised by Mr Tomana on the subject of the Prosecutor-General and separation of powers. Fourth, and pertinently relevant to issues of judicial practice; the Zimbabwe Lawyers for Human Rights was admitted as amicus curiae to assist the court. The involvement of legal civil society groups in matters of legal significance is a modern aspect in progressive jurisdictions across the globe, and these bring a wealth of expertise to help the courts in coming up with their far-reaching and crucial decisions. Fifth, and very important, it address a topic of importance at the present in Zimbabwe, given that only last week the House of Assembly adopted amendments to the Criminal Procedure and Evidence Act through the Criminal Procedure and Evidence Amendment Bill, to effectively stifle private prosecutions by granting the Prosecutor-General the absolute discretion to grant or refuse certificates of private prosecution. Mr Tomana, through his lawyer Advocate Thabani Mpofu, attempted to argue that the matter should be stayed pending the outcome of the amendments currently tabled before parliament. This, the Constitutional Court did not entertain. This again, is a very strong sign from the Constitutional Court: the court will not watch as a man violates the law and disobeys the courts and the Constitution and hide behind political processes that are still ongoing.
[The judgment] renews the faith of many in the rule of law in Zimbabwe and the ability of the judiciary to apply the Constitution and the law on all in contempt.
The law is that for one to be able to privately prosecute a matter when their criminal case has been declined by the National Prosecuting Authority, the Prosecutor-General must issue the prospective litigant with a certificate of private prosecution. Despite opposition to the amendments by the country’s opposition parties in Parliament, the amendments sailed through the House of Assembly and the Bill is now in the Senate awaiting deliberation and acceptance. Once the Senate approves, the Bill will be sent to the President for assent and will become law.
In refusing to issue the certificates of private prosecution, the Prosecutor-General contravened sections 164(3) and 165(1)(c) of the Constitution. Section 164(3) provides that: “An order or decision of a court binds the State and all persons and government institutions and agencies to which it applies, and must be obeyed by them”. Section 165(1)(c) on the other hand provides as follows:
“165 Principles guiding judiciary
These provision come on the back of section 2, the supremacy clause, which provides that the “Constitution is the supreme law of Zimbabwe” and that “the obligations imposed by the Constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.” It is also of moment that section 3 of the same Constitution which enumerates the founding values and principles of the country lists supremacy of the Constitution, the rule of law and fundamental human rights and freedoms as such values.
‘In a constitutional democracy based on the rule of law ﬁnal and deﬁnitive court orders must be complied with by private citizen[s] and the state alike. Without that fundamental commitment constitutional democracy and the rule of law cannot survive in the long run.’
Magidimisi NO v Premier of the Eastern Cape 2005 (6) SA267 (TkD)
I must add that in the same section, section 3, the Constitution provides for principles of good governance which are binding on private citizens and the state alike. One such principle is “transparency, justice, accountability and responsiveness”. The refusal to grant private prosecution certificates goes to the core of this principle, as it bring into questions aspects of access to justice, prosecutorial transparency and accountability, as well as responsiveness of the criminal justice process to criminal elements and to the violation of human rights.
In expressing its displeasure in Mr Tomana’s conduct, the Constitutional Court did not mince its words:
“His responsibility is to prosecute whoever disobeys the court orders, but he himself turns out to disobey the court orders, that in itself troubles this court. …What is troubling the court is an officer of the court who deliberately, not once, but twice, disobeys the court orders.”
All lawyers are officers of the court and owe a duty to the court to obey court processes and court decisions. This gives the Prosecutor-General, himself an officer of the court as a lawyer, an even greater duty to obey court orders. Added to that is the important public office he occupies.
Accepting Mr Tomana’s views that his office grants him absolute discretion on who to prosecute and who not to, and who to grant private prosecution certificates and who not to, the question becomes what standard he applies in reaching his conclusions. This prompted the Constitutional Court question: “[I]f a three-year-old girl is raped and you refuse to prosecute, is it not taking the law into one’s hands?” In the court’s view, Mr Tomana’s behaviour in worrisome as he does not have a “blank cheque” to choose whom to prosecute or not to prosecute. Clearly such a discretion is open to abuse, warranting some form of check in the way the Prosecutor-General deals with applications for certificates of private prosecution. Such unfettered discretion is inimical to the rule of law and constitutionalism.
In a functional democracy — and all things being equal — no one is above the law. No office or official can claim to be immune from judiciary scrutiny or to be beyond the reach of constitutional scrutiny. The Prosecutor-General’s attempt to use section 260(1)(a) of the Constitution to exclude judicial review of his actions is thus wrong. This flows from the very premise that the Constitution is the supreme law of the land. It is this Constitution that the courts apply, and it is this Constitution that sets the standard for the rule of law in the country. For the Prosecutor-General to then say that his office is beyond the province of constitutional scrutiny and judicial oversight is not only disturbing, but a direct attack to the Constitution and to the rule of law. It is in correcting these notions and perceptions that the Constitutional Court’s decision is of importance.
To register its disdain with the Prosecutor-General’s conduct, the court came own heavily on him and ordered that should he fail to comply with the present order, he will be barred from personally appearing before any court as a legal practitioner. This is an order against him personally as an individual occupying a government office which he abused by disobeying the court orders. Not only will it mean he will cease being a practicing lawyer; he will also have to vacate office as he will cease to qualify for the post of Prosecutor-General, which requires one to be a practicing lawyer. Section 259(4) states that the Prosecutor-General must be a person qualified for appointment as a judge of the Supreme Court. Section 178 provides for the qualifications of judges of the Supreme Court, and one such requirement is that the person must be currently qualified to practice law. From this, one can see the strength of the Constitutional Court’s order. Again, such an order by the court to a government official is unprecedented in the country, yet another indication of the court steering the country towards constitutionalism and the rule of law.
Contrary to the Prosecutor-General’s arguments that his decisions are in the national interest, such decisions as the ones he made in the two cases in question are a stark contrast to being in the public interest. This, the court made clear. The court questioned what national interest he will be protecting “for a common thief and a rapist”, and whether the Prosecutor-General thinks parliament intended to protect rapists and thieves.
Going forward, one can say the Constitutional Court has already stated its position regarding the amendments to the Criminal Procedure and Evidence Act. Simply put, that amendment is most likely unconstitutional. The grounds on which to challenge the constitutionality of the amendments have already been laid by the Constitutional Court. While one cannot say out-rightly that the amendment are indeed unconstitutional, one can safely say there is a prima facie case of unconstitutionality.
In all measure, this case is one good step by the Constitutional Court towards a culture of constitutionalism, and towards strengthening the rule of law in the country. By all standards this is a strong decision by the Constitutional Court and it opens a window for renewed faith in the development of constitutionalism in the country. Together with a ‘decision of the court’, which is a judgment that is authored jointly by all members of court, a unanimous decision is the strongest message a court can send on the view it expresses. This decision is therefore of significant moment. It sends a message that court orders must be obeyed. “Where you have doubts of the constitutionality of the matter, you obey the court order first and challenge it later. It’s not for litigants to choose which law to obey and which one to disobey,” said the court. Ultimately, both the issue of obeying court orders, and of granting private prosecutions when the NPA decides not to prosecute is an imperative to allowing people access to justice. Rule of law and justice for all is the ultimate objective.
* The matter was referred to as “THE PROSECUTOR GENERAL OF ZIMBABWE ON THE QUESTION OF HIS CONSTITUTIONAL INDEPENDENCE AND PROTECTION FROM THE DIRECTION AND CONTROL OF ANYONE”.
Musa is a law graduate trained at the University of KwaZulu-Natal, University of Cape Town and the University of Pretoria (Centre for Human Rights). He is interested in law & governance. He is a Mandela Rhodes Scholar and an SA Brightest Young Minds Alumnus. He currently serves as a law research clerk to the Chief Justice & the Judges of Appeal at the Supreme Court in Namibia, and an Assistant Researcher at the Democratic Governance & Rights Unit (UCT). Formerly, he has served as a research clerk to a Judge of the Supreme Court of Appeal, South Africa.
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