Public prosecutors in the High Court are reported to have “downed tools” after one of their number was arrested, allegedly for agreeing that a prominent former politician who is awaiting trial on corruption charges should be given back his passport. The prosecutors suggested that the arrest was instigated by a Special Anti-Corruption Unit in the President’s Office which, they claimed, was violating their prosecutorial independence by giving them instructions on how to conduct cases.
This raises a number of very important issues:
· How independent are prosecutors: are they free to decide for themselves how to conduct the cases assigned to them?
· Can prosecutors down tools ‒ i.e. go on strike or take other industrial action?
· When, if ever, can prosecutors be arrested?
· What action should be taken against prosecutors suspected of corruption?
Independence of Prosecutors
State prosecutions in Zimbabwe are the responsibility of an organisation called the National Prosecuting Authority [NPA]. It is headed by the Prosecutor-General, who is declared by section 260 of the Constitution to be “independent and … not subject to the direction or control of anyone”. This independence extends to all the professional staff of the NPA: according to section 259(10) of the Constitution an Act of Parliament must provide that, in exercising their functions, prosecutors are “independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General”.
Obviously prosecutors cannot be completely independent. In addition to the limits envisaged by section 259 of the Constitution ‒ that they must act in accordance with the law and instructions from the Prosecutor-General ‒ their independence is limited by the nature of the NPA itself. It is a large hierarchical organisation and the Prosecutor-General cannot possibly keep personal control of all prosecutions in the country. Hence, as the National Prosecuting Authority Act makes clear, prosecutors are subject to the supervision of the National Director of Public Prosecutions (section 8 of the Act) and other persons designated by the Prosecutor-General (section 12(4) of the Act).
All this accords with common sense. Like everyone else engaged in skilled and specialised work, prosecutors need to be supervised while they are trained and gain experience. Even when they are experienced they must follow the NPA’s policies and guidelines as well as instructions from their superiors because, as already pointed out, the NPA is hierarchical and has a chain of command.
It seems however that the prosecutors are protesting against instructions being given to them by a Special Anti-Corruption Unit, not by the Prosecutor-General and his deputies in the NPA. Can such a body tell prosecutors what to do? The answer depends on whether the Special Anti-Corruption Unit is part of the NPA (in which case it is subject to the Prosecutor-General’s control) or is a separate body. The law generally allows a person vested with a statutory function (in this case the Prosecutor-General) to delegate that function to persons whom he or she can control. Hence the Prosecutor-General can delegate to his subordinates in the NPA the task of supervising and instructing prosecutors. Instructions from those subordinates can be regarded as coming indirectly from the Prosecutor-General himself. But the law does not normally allow a person to delegate a statutory function to someone over whom he or she has no control; hence if the Prosecutor-General has no control over the Special Anti-Corruption Unit he or she cannot delegate the task of supervising and instructing prosecutors to the Unit.
So if the Unit is a separate body independent of the NPA, then prosecutors can legitimately object to being given instructions by it ‒ indeed they ought to do so because the Constitution says they should take instructions only from the Prosecutor-General. But if the Unit is part of the NPA and subject to the Prosecutor-General’s control, then prosecutors must accept its instructions.
Can Prosecutors Go on Strike?
Prosecutors are State employees. Section 65(3) of the Constitution gives employees the right to participate in collective job action, including the right to strike, but says “a law may restrict the exercise of this right in order to maintain essential services”. Prosecutions have not been declared an essential service under the Labour Act so prosecutors have the right to take what the Act calls “collective job action”, i.e. to strike. Their right to do so is subject to two restrictions, however:
1. Before going on strike employees must give their employer 14 days’ notice, unless the strike is intended to avert an immediate hazard which they reasonably fear poses an immediate threat to their health or safety (section 104 of the Labour Act).
2. Prosecutors are lawyers: section 9 of the National Prosecuting Authority Act says that all professional members of the NPA must be entitled to practise law in Zimbabwe, i.e. they must be registered legal practitioners. Hence they are bound by the same ethical duties that bind other members of the profession. Lawyers are not allowed to stop working for a client at the drop of a hat, if it prejudices the client and other people with whom they have professional dealings. The same goes for prosecutors: while they can go on strike, before they do so they must ensure that:
· their employer ‒ the NPA ‒ is not prejudiced in any crucial way, e.g. by missing a deadline for filing an appeal,
· steps are taken to cover all court engagements, and
· ensure compliance with professional undertakings they have given to courts and other lawyers.
Prosecutors must remember that they are professional people with professional and ethical responsibilities. They cannot simply down tools and walk off the job.
Can Prosecutors be Arrested?
The purpose of arrest
The police in Zimbabwe all too often take the view that criminal investigations must start with an arrest. This is not so. The main purpose of an arrest is to ensure that a suspect will stand trial for the crime which he or she is suspected of having committed. Other legitimate reasons for arresting a suspect are to stop him from committing a crime or interfering with the evidence. But beyond that, according to our courts, powers of arrest should be exercised sparingly if at all. So even if a police officer has reasonable grounds to suspect that a person has committed a crime, it will be unreasonable and illegal to arrest him unless the police officer believes, in addition, that the arrest is necessary to prevent him running away, committing another crime or interfering with the evidence.
Arrest of prosecutors
In the case of prosecutors there is a further consideration. Prosecutors are supposed to be impartial and scrupulously fair to accused persons, which is one reason why their independence is written into the Constitution. They must exercise their own judgement when prosecuting cases and must not act on instructions from the police or politicians or anyone else ‒ and, equally important, they must not appear to be acting on such instructions. If a prosecutor is arrested it raises fears in the public mind that the police are trying to intimidate him and his colleagues.
Obviously if a prosecutor starts a brawl in a bar or commits some other crime while not on duty, he can be arrested ‒ so long as the other requirements for a legal arrest are present. But if he commits a crime in the course of his work the police should be very circumspect indeed about arresting him, and should not do so unless there is no other way of bringing him to justice or completing their investigations. Obviously they should investigate the crime, but they can usually do this without arresting the prosecutor.
What to do about Prosecutors Suspected of Committing Crimes
Prosecutors have the task of bringing criminals to justice, so they must avoid any taint of impropriety in their own lives, both official and personal. As one judge put it:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
The same idea is reflected in section 6 of the code of professional ethics which the NPA published in 2015:
“A prosecutor shall avoid impropriety and the appearance of improper behaviour in all of his or her activities, at work and away from work …”
So it is not enough for prosecutors to refrain from illegal or improper conduct: they must refrain from conduct which gives rise to a suspicion that they are acting illegally or improperly. If their conduct is such as to make reasonable people suspect they have done something illegal or improper, then they have breached the duty imposed upon them by their code of ethics whether or not the suspicion is ever substantiated.
What can be done about prosecutors who breach their code of ethics in this way? To preserve the reputation and integrity of the NPA they should be removed from prosecutorial duties, if necessary assigned other duties in government service. Unfortunately the only penalty laid down in the code of ethics is a reprimand ‒ which hardly seems adequate for a prosecutor who is reasonably suspected of taking a bribe.
The NPA should consider amending the code of ethics, and also the regulations that prescribe general conditions of service for prosecutors, to allow it to dismiss prosecutors whose conduct gives rise to a reasonable suspicion of criminality or illegality. Admittedly this would be a harsh penalty, but prosecutors have to understand that membership of an honourable profession brings benefits but it also carries a price.