The Sunday News
POLICE officers’ continued service in Government as prosecutors hangs in the balance following the establishment of the National Prosecuting Authority (NPA) which according to provisions of the Constitution, must have civilian personnel.
Section 258 of the Constitution provides for the establishment of the NPA whose mandate is to institute and conduct criminal proceedings on behalf of the State.
The new supreme law of the country transferred the responsibility for criminal prosecutions from the Attorney-General’s office to the NPA which is headed by Mr Johannes Tomana.
Permanent Secretary in the Ministry of Justice and Legal Affairs Mrs Virginia Mabhiza told Sunday News last week that the Constitution did not have provisions for public servants to serve in the NPA.
She said the Authority was a civilian organisation whose officers should be civilians.
Promulgation of the National Prosecuting Authority Act, which is set for this week, is expected to pave way for prosecutors to move from the Civil Service Commission to the new Authority.
Mrs Mabhiza said the fate of police prosecutors lay with the head of the NPA, Prosecutor-General Mr Tomana.
“The Constitution outlines that the NPA and any other such institutions should be serviced by civilians, these are civilian organisations. On top of that the NPA will also act as the employer of all government law officers.
“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.
Efforts to get hold of Mr Tomana, for him to clarify the matter, were fruitless as his mobile went unanswered for the greater part of last week.
The serving of police officers in the NPA 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 Con 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.
“It is submitted that the prosecutor Assistant Inspector Lemekani, being a police officer, is acting prosecutor in contravention of Sections 258, 259 and 260 of the Constitution relating to the functions and independence of the PG. This infringes the right of the accused person to a fair trial,” read part of the application.
“Section 258 establishes an NPA which is responsible for instituting and undertaking criminal proceedings on behalf of the State and discharging any functions that are necessary or incidental to some prosecutions,” the application read further.
The trio also argued that Section 259 of the Constitution put in place provisions to ensure the independence of the Prosecutor-General, who is head of the NPA.
“Inter alia 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.
Ruling on the matter is yet to be made.
The Zimbabwe Law Officers Association has also challenged, at the Con Court, the use of security forces in courts of law as prosecutors.
