Back to Index

Zimbabwe Briefing - Issue 88
Crisis in Zimbabwe Coalition (SA Regional Office)
August 22, 2012

Download this document
- Acrobat PDF version (1.11MB)
If you do not have the free Acrobat reader on your computer, download it from the Adobe website by clicking here

Resourcing The Prosecuting Authority: Beyond The AG/NPA Constitutional Debate

Forget for a moment, the lofty constitutional statements on judicial independence. Put aside for a moment, the perennial claims and counterclaims in respect of the Rule of Law. Ignore for a moment, the dispute over whether the new constitution should introduce a new National Prosecuting Authority (NPA) or the current Attorney General's Office (AG's Office) should continue in its present form.

The problem is less in the words of a constitution but more in the attitude and the practice of those that are charged with the authority to govern. It is what I have often referred to as the "Human Factor" in governance; that you can have all the beautiful constitutions, laws and regulations in the world but if you do not ad-dress the impact arising from the human agents - the people - who are charged with power and responsibilities to implement the laws, then there is unlikely to be positive change.

There is a story in the press reporting that close to 140 of the 200 public prosecutors in Zimbabwe are members of the Zimbabwe Republic Police, the Zimbabwe Prison Service and the Zimbabwe National Army http://www.newzimbabwe.com/news-8815-Police,+army+officers+used+as+prosecutors/news.aspx.

This means that 70% of the public prosecutors are members of the security services who are working in an otherwise civilian role. The report suggests that they have been brought in to cover a shortage of prosecutors in the justice system. This situation is untenable and is represents a serious assault on the principle of keeping the security services separate from the civilian institutions. All the claims of non-interference of the security services in the civilian affairs become hollow talk when it is clear that the involvement of the security services personnel is legalised and condoned at the very basic level where ordinary people are affected on a day to day basis. It is part of a culture that normalises security services interference in civilian matters and it becomes hard to blame them for thinking that their role is legitimate.

The trouble is all too often when we deal with issues of the justice system and judicial independence, we focus on the high level parts of the judicial system (the High Court and the Supreme Court) and forget the really crucial bits that impact on the ordinary people on a day to day basis (the Magistrates' Courts) and the public prosecution service. This is the arena in which ordinary people interact and meet with the law and the justice system on a daily basis, oft-times unpleasant collisions in dark, dingy corridors and courtrooms . . . and waterless facilities that assault all senses.

It is in the Magistrates' Courts where the bulk of the law is played out, every day of the working week; a domain in which justice and injustice alike largely go unnoticed; hardly re-ported unless the odd case in newspaper pages. Still, thousands of cases go unnoticed; every minute the just slip under the radar.

Many accused persons suffer prejudice in these lower echelons of the justice system, not just because they are not legally represented but because their cases are handled by pseudo-prosecutors that are less than competent - and it is not their fault. They are asked to fill a role whose requirements are not matched by their skills set. So while the political parties haggle over whether to continue with the present AG's Office or to create a new NPA in the new Constitution, the real challenge is still to build the operational capacity of this critical office, by whatever name it is called, to ensure that it is able to attract and retain competent staff and

. . . to pay more attention to the Magistrates Courts where real people collide, often violently against each other and against the law. And yet you have grown men and women investing hours and acres of space fighting for the retention the AG's Office in the present form. The current Draft Constitution separates the AG's Office from the newly created National Prosecuting Authority. ZANU PF, we read from the media, is opposed to this proposition, preferring instead to retain the AG's office in its present form. The MDC-T and the MDC-N accept the Draft Constitution's formulation. But as these press reports indicate, the problem is way beyond how the creature is referred to or structured in the Constitution. Whether it is called the NPA or the AG, the critical point is that the prosecuting authority's independence must be guaranteed in the Constitution but more importantly, it must have the capacity and resources to execute its role through professionally trained and suitably competent staff.

It would be time well spent if men and women haggle over how many resources to put into these critical services as opposed to fighting over whether the constitution should maintain an office of the AG or create an NPA. Calling it the AG or the NPA or indeed creating both offices is unlikely to change anything unless politicians start looking at matters of substance over form. The real challenge is resourcing the prosecuting authority; creating a civilian prosecuting authority that can attract and retain legal talent which is guided by professionalism. The present set up in which the office has to rely on members of the security services is untenable and does not augur well with the principles of separation between the security and civilian institutions. The moral leverage of accusing the security services of interfering in civilian affairs is lost when the civilian authorities have to so heavily depend on the security services.

Download full document

Visit the Crisis in Zimbabwe fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP