The Sunday News
PROSECUTOR-GENERAL Mr Johannes Tomana has rubbished suggestions that the National Prosecuting Authority (NPA) should disengage all members of the security services from serving as prosecutors, as the national constitution barred uniformed forces from practising as law officers.
Mr Tomana said that those contesting the engagement of security forces as prosecutors had no basis for their argument, and attempts to base their contention on the constitution were an affront to the country’s supreme law.
The new Constitution created the National Prosecuting Authority which takes over the responsibility for criminal prosecutions from the Attorney-General’s office and all prosecutors will be employed under the authority.
Zimbabwe Law Officers Association (Ziloa) led by its secretary-general Mr Dereck Charamba recently challenged the use of the police officers as prosecutors, claiming that they posed threats to the fair trial rights of criminal suspects.
Citing sections 258 and 259 of the national constitution Ziloa argues that the NPA was a civilian organisation which should be independent in discharging its functions thus making it illegal for police officers to serve as law officers under the authority.
“Section 259 (10) requires any person assisting the PG, among other qualifications, to be independent in exerting their functions, impartial and subject only to the law and to the direction and control of the PG,” reads part of Ziola’s affidavit deposed at the Constitutional Court accusing Mr Tomana of breaching the Constitution by using security officers to prosecute suspects.
A fortnight ago permanent secretary in the Ministry of Justice and Legal Affairs Mrs Virginia Mabhiza told Sunday News that the fate of security forces employed as prosecutors lay with Mr Tomana who would decide, at his discretion, whether to incorporate security forces into the new NPA or discontinue their services.
“By and large the Prosecutor-General will have to decide whether to retain police officers as prosecutors or not. He is the one who has the final say on that matter,” she said.
Mr Tomana on Friday last week told Sunday News that his office would continue engaging the services of security forces as they were qualified personnel, who had proven beyond doubt their ability to discharge duties as expected.
He said those questioning the legality of security forces serving as law officers were misinterpreting the Constitution, as the law did not prohibit members of the security forces from serving in the NPA, but instead insulates the authority from constitutional restrictions that bar police officers from serving in civilian institutions.
Mr Tomana said Section 259 of the Constitution, the same section being cited by Ziola, provides that the Prosecutor General and other officers of the NPA are a public office, but do not form part of the civil service.
“What they are saying is fiction and has no basis. These people are claiming that they want to uphold the constitution when in actual fact they are attempting to uproot it.
“It’s quite clear that the National Prosecuting Authority which is not part of the Civil Service as provided by the Constitution is insulated from constitutional restrictions that prohibit members of the security services from being employed or engaged in civilian institutions.
“As such members of the police service will continue serving under the NPA authorised by me at my discretion as the Prosecutor General to appear on my behalf in any court of law.”
“We have always engaged them (police officers) and we will continue engaging them. There are no ifs or buts on that matter, it’s quite clear,” he said.
The serving of police officers in the NPA also came under the spotlight earlier this year when three suspects facing theft charges made an application to the Constitutional Court challenging the independence and impartiality of the police officers in prosecuting.
The three questioned the independence of trial prosecutor Assistant Inspector Themba Lemekani whom they alleged was not questioning why his boss, the officer-in-charge of Inyathi Police Station, was turning them into accused persons when they were the ones who reported the theft of the cement they are accused of stealing.
In their application to the Constitutional Court through their lawyer Kucaca Phulu before Inyathi magistrate Ndumo Masuku, the trio questioned how police prosecutors could be independent and impartial when they were subject to discipline and control by their superiors in terms of the law.
