The office of the Director of Public Prosecutions secure in playing politics rather than doing justice

By Muna Ndulo

INTRODUCTION

There have been many questions raised by a number of people notably Laura Miti, Mike Mulogoti and Charles Milupi about the role the DPP is playing in prosecutions in the Zambian criminal justice system. I would like to address the concerns raised. The DPP’s handling of the cases of People v. Hakainde and Others and the People v. Mwaliteta and others raise serious concerns as to whether the DPP office is discharging its constitutional responsibility in criminal prosecutions in Zambia. I take the two cases to illustrate that the DDPs office is either playing politics or is incompetent. Either situation, would be sad for Zambia. An argument has been made by the President and others that it was up to the courts to decide whether the two cases should go on or not.

This argument is disingenuous, Zambia is not a civil law system where judges bring indictments. In Zambia prosecutions are initiated by the police which belongs to the executive and are authorized by the DPP which constitutionally is an independent office. The office of the DPP bears responsibility for certifying that the evidence presented by the police supports a criminal charge or indictment. The courts do not exercise control over the institution or continuation of criminal proceedings, save where it is necessary to prevent an abuse or to ensure fair trial (Maxwell v. R , 1995) The courts cannot be blamed for an indictment.

They can only be blamed for bad judgments. In this article, I would like to show that no properly trained lawyer let alone a DPP who had applied his or her mind to the law and facts concerning the Hakainde case and the Mwaliteta case would have authorized the indictments, and drawn such incompetently drafted charges (in the case of the Hakainde the charge sheet even contains elementary grammatical mistakes). And yet on more than one occasion the DPP affirmed these indictments. In contrast, the DPP used her powers to take over and stop the cases of contempt by private prosecutors against Godfridah Sumaili, Minister of Religious Affairs, and Amos Chanda, Special Advisor (press) to the President.

In my view, the DPP by repeatedly sanctioning prosecutions which no impartial judge properly directed in accordance with the law could reasonably be satisfied beyond reasonable doubt that the individuals who were being prosecuted had committed criminal offenses, failed in her responsibility and in the process undermined the judicial system in Zambia.

Additionally, she violated the human rights of the accused persons (in the cases of Hakainde and Mwaliteta) and violated international standards and guidelines for prosecutors. The fair, independent and impartial administration of justice requires prosecutors to be held accountable should they not fulfill their functions in accordance with their professional duties. The DPP must be held accountable. Constitutional office holders are accountable to the constitution. They must do their job and not play politics.

The DPP is a fundamental gatekeeper to the sacred temple of justice in any democratic society. This is because, the office of the Public Prosecutor has since evolved from its odious past – as a willing cudgel in the hands of feudal authoritarians – to its modern position; as not only the defender of the ethos of society via criminal prosecution, but also as firm protector of the integrity of the criminal justice system. The office has also developed to become a bulwark, protecting the citizens from the whimsical and capricious use or employment of the criminal justice system to oppress them. This is because, it has become axiomatic that justice is the primary reason of organized societal living. To deny this is to create a Hobbesian state of nature where life is “nasty, short and brutish.” “Take away justice and what are societies but organized brigandage.”

By the same reason, law is a tool of justice – a framework through which every member of society is accorded due self-worth, dignity and fundamental freedoms. Law therefore, is not an end in itself but a means through which justice is guaranteed to “all manner of persons, without fear or favor, affection or ill-will.” The New South Wales, Australia, Guidelines for Prosecutors describes a prosecutor as a “Minister of Justice”. The Guidelines state that the prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness.

A prosecutor is not entitled to act as if he or she is representing private interests in litigation. A prosecutor represents the community and not an individual or political party. A prosecutor should act independently yet in the general public interest. The “public interest” is to be understood in that context as an historical continuum acknowledging debts to previous generations and obligations to future generations.

There is hardly any oath of office for Public Prosecutors in the common law tradition – which Zambia is a co-heir – which does not have one version of this solemn clause or otherwise. Justice therefore has many branches – including but not limited to equity, fairness, due process and insulation from arbitrary use of state powers. Essentially, it protects citizens – particularly the vulnerable – from abuse which is inherent in unbridled use of state powers. It allocates and regulates powers thus forestalling the crude appropriation of the coercive instrumentalities of state.

In the same vein, crime and punishment are subsisting attributes of law and society. Thus, the socio-political health of any nation can be measured by an evaluation of the structures that govern crime and punishment in that society – the criminal justice system. This is hardly surprising, considering that tyranny thrives in societies with weak and pliable criminal justice systems. Therefore, justice is the first casualty of tyranny and ‘democratic dictatorship’ is justice. For instance, under the Apartheid system, all that was needed to make the free movement of blacks and other persons of color criminal, was to just make a pronouncement to that effect and even justify it as of ‘good neighborliness’ or ‘law and order.’

In democratic dictatorships, all that is needed is to invoke powers of emergency – which are only preserved for extreme situations to preserve the life of the state – at the flimsiest excuse. By so doing, the state effectively suspends the full panoply of due process and other human right guarantees which the citizens are entitled to. This is extremely manifest in societies where there is a clear executive capture of the other organs of government – the legislature and the judiciary.

Evidently, the Directors of Public Prosecutions – as important personnel in the criminal justice system – hold what can be called a ‘power of life and death.’ They can cause the incarceration of citizens by merely framing charges against them. Such citizens may even face the prospect of death depending on the charges which it pleases the Prosecutor to put on them. The extent of the damage that can be done is even more far-reaching when one considers that a citizen once charged will go through the process of (pre-trial detention and) judicial trial even if such a citizen is merely challenging the validity of the charges against him.

What this means is that the powers of the Public Prosecutor may be wrongly used with devastating consequences not only to the liberty of citizens but also to democracy. The chilling effect of potential spurious charges by the DPP on citizens can destroy their ability to demand accountability from state authorities. The experience traumatizes citizens and leaves them bankrupt as a result of huge legal costs incurred in fighting the spurious charges. Indeed, the weakness or dysfunctionality of any criminal justice system is a calamity to citizens as shown in the plight of HH in which Magistrate Greenwell Malupani ruled in April that the treason charge against him was incompetent and lacked specifics on the planned overt act to commit treason. This decision by the Court showed that the Office of the DPP had failed in its responsibility to protect a citizen and compounded the failure by not dropping the case at this stage.

In the case of Mwaliteta, Judge Bowa in his well-reasoned and articulated judgement ruled that the Prosecution had not established a case sufficiently to warrant the Court to put the accused on their defence; the evidence presented did not meet the charge of aggravated robbery that the office of the Prosecutor had authorized. The accused persons were not even at the scene of the crime, their alibis were not investigated. They arrived at the scene of the crime after the alleged crime. The police linked them to the crime because they parked near a police car and looked suspicious when they arrived at the scene of the alleged robbery. And yet the accused persons had spent over a year in prison under inhuman conditions. In both the Hachilema and Mwaliteta cases the accused were deliberately slapped with non-bailable offences to keep them in jail. Such miscarriages of justice are due to the failure of the office of the DPP to do justice as the gatekeeper of the criminal justice system. Instead the Courts are left to do the job of the DPP’s office, thus undermining their role and overburdening them with cases that should not have come before them in the first place and unnecessarily overcrowding already overcrowded prisons.

It is this understanding of the linkages between law, justice and criminal justice that led to reforms in many democracies – particularly the establishment and insulation of the office of the Director of Public Prosecutions from the many influences of men of Power. Thus, the office of the DPP, is not only there to prosecute criminal behavior, but also to protect the citizen from the illicit exercise of coercive powers of state.

OFFICE AND FUNCTIONS OF THE DPP UNDER THE ZAMBIAN CONSTITUTION

Section 180 of the Zambian Constitution Amendment Act 2016, created the Office of the Director of Public Prosecutions. By the distinct Provisions of that same section, the DPP though appointed by the President subject to the ratification by the Parliament is not an officer in the Presidency. In other words, she is not the President’s steward. The stewardship inherent in that office is to the Zambian people. Thus, the Office of the DPP enjoys a special status and only a person qualified to be a judge can be appointed to be the Director of Public Prosecutions under the relevant laws in Zambia. She is not only the Chief Prosecutor for the whole Zambian nation, she is also the Head of the National Prosecution Authority. The DPP has the power to institute criminal proceedings on behalf of the state and to determine prosecution policy. He or she must issue and enforce policy directives to be observed in the prosecution process and has the power to review a decision whether to prosecute or not.

The powers and duties are extensive and their proper exercise and performance is crucial to attainment of criminal justice in the country and the attainment of an effective criminal justice system is in turn vital to our democracy. It is therefore a position of immense public trust and responsibility, hence; the office is protected in such a manner that the occupant of that office can only be removed by the detailed and cumbersome process of removing a judge. By the further provisions of Section 180(4) of the Zambian Constitution Amendment Act 2016, the DPP may “institute and undertake criminal proceedings against a person before a court, other than a court martial for an offence alleged to have been committed by that person”.

The DPP also has powers and the function to “take over and continue criminal proceedings instituted or undertaken by another person or authority; and discontinue at any stage before judgement is delivered, criminal proceedings instituted or undertaken by the DPP or any other person or authority.” Indeed, she can perform any of these duties either directly or through officers in her office. Significantly, section 180(7) of the Zambian Constitution Amendment Act 2016, provides unequivocally that “the DPP shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office, except that the DPP shall have regard to the public interest, administration of justice, the integrity of the judicial system and the need to prevent and avoid abuse of the legal process.”

The obvious import of these provisions, is to grant autonomy and full agency to the DPP so that the holder of that Office may pursue justice vigorously, unhindered by self-interest and animated only by the finest interests of the public. I argue that this interest of the public is simply justice, due process and respect for fundamental rights of citizens. Any other thing added to should only be to enhance the foregoing values rather than derogate, diminish or indeed out-rightly destroy them. The DPP therefore is an authority unto herself whose motivation to frame charges, prosecute or refrain from prosecuting any alleged criminal offence must be informed by the duty to do substantial justice.

Little wonder then, why the framers of the law strengthened the position of the DPP by providing that she can only be removed in the same manner that a judge is removed from office – Sections 182(3) and 144 of the Zambia Constitution Amendment Act 2016. This autonomy of authority granted to the DPP is further founded on section 6 of the Prosecutions Authority Act (Law number 34 of 2010). In view of these powers, and functions vested in the office of the Director of Public Prosecutions, it is clear that the DPP enjoys an elevated public service position under the extant Zambian laws. It is therefore imperative, that particular attention is paid to this special public office as it is a crucial gatekeeper to the temple of justice.

THE UNITED NATIONS GUIDING PRINCIPLES FOR PUBLIC PROSECUTORS AND COMPARATIVE EXPERIENCES AROUND THE GLOBE.

According to the UN Special Rapporteur on the Independence of Judges and Lawyers, “Prosecutors are the essential agents of the administration of justice, and as such should respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” Prosecutors also play a key role in protecting society from a culture of impunity and function as gate keepers to the judiciary.

Despite the central role of prosecutors, it is noticeable that often they are not the center of attention in the administration of criminal justice. Often, the police, the courts and sometime the defense counsel gets the full public glare and scrutiny. Thus, the prosecutor who is the lynchpin in the entire criminal justice architecture is left to enjoy the comfort of anonymity while accused persons are slammed with frivolous charges and incarcerated pending trial. Sometimes, the period of awaiting trial surpasses the period of time the accused would have served in prison custody if (they were) he was tried expeditiously and convicted.

This is particularly so for petty offences usually committed by ordinary citizens – who often may not have the wherewithal to secure effective legal representation. These and many more concerns led the United Nations Congress on the Prevention of Crime and Treatment of Offenders to adopt “the Havana” Guidelines. The Guidelines are aimed at “assisting member states in their task of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings”.

They also seeks to ensure that governments take these guidelines “into consideration within the framework of national legislations.” They therefore emphasize that “it is essential that the prosecutors have sufficient independence or autonomy to take their decisions regardless of any outside pressure, in particular from the Executive power of the state.” They state further that, where such pressures can be and are brought, the Prosecutor will not be able to protect the interest of justice, will not be able to respect the rule of law or human right and will be powerless to deal effectively with cases of corruption or abuse of state power.”

Summarily, the Havana Guidelines emphasize(s) that Prosecutors shall:

i. At all material times maintain the honor and dignity of their profession;
ii. Always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession;
iii. At all times exercise the highest standards of integrity and care;
iv. Keep themselves well informed and abreast of relevant legal development;
v. Strive to be and be seen to be consistent, independent and impartial;
vi. Always protect an accused person’s right to fair trial and in particular ensure that evidence favorable to the accused is disclosed in accordance with the law or the requirements of a fair trial;
vii. Always serve and protect public interest;
viii. Respect, protect and uphold the Universal Concept of human dignity and human rights; and
ix. Act with objectivity.

These cannons are abundantly acknowledged by the Zambian Public Prosecution Authority Act, although their practical effect on the National Prosectution Authority is not visible. Other similar instruments have been adopted in the Region. For instance, South Africa has since adopted “An Ethical Code of Conduct for Members of the National Prosecuting Authority.” The code is anchored firmly on integrity, impartiality, diligence, and professionalism as the foundations of public prosecutions. The abundance of the cannons and the wide adoption of same by many democratic countries is indicative of the fact that fair, effective and impartial public prosecution is indispensable in any democratic society.

GENERAL COMMENTS AND CONCLUSIONS

Undoubtedly, the Director of Public Prosecutions is a remarkable gatekeeper of justice in any democratic society. The powers of the office of the DPP are enormous and can give a crushing blow to human rights and democracy if improperly exercised. This makes the need to safeguard that office and use its powers in the best interest of the public indispensable. All prosecutorial decisions must be made against the backdrop of the requirements of domestic law and procedure and a constant and unwavering appreciation of fundamental human rights.

Prosecutions ought to be initiated or continued only where two conditions are satisfied: (a) the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction-evidence test and (b) the prosecution is required in the public interest-the public interest test.

Zambian democracy presently is on trial. There is what one may call a creeping self-appropriation of the coercive powers of state by state authorities. In that unholy expropriation of the people’s right to respect of their rights and fundamental freedoms, the Parliament and the Judiciary appear to have been totally emasculated. The largely present impotence – of the Judiciary and the Parliament – is telling and many a citizen have lost interest in seeking justice before the courts or expecting the lame duck parliamentarians to act in the interest of the public.

Amidst this trying time, the DPP holds a lot of powers and should courageously refuse to become a willing tool of repression, oppression and egregious violation of the fundamental freedoms of citizens. To do otherwise would be to turn the office into a thing of ridicule and office of public persecution. The reckless framing of charges and use of the same to put “perceived enemies” of the state out of circulation is an injustice that stinks.

Democratic societies thrive on competitive ideas and politics; they would die otherwise. It is unbearable when such trumped up charges bear the seal of the DPP whose oath of office demands that she does justice to all manner of persons, without fear or favor, affection or ill-will. The DPP stands on the threshold of history at this period of moral crises for the Zambian People – she cannot afford to stay aloof or feign ignorance or indifference. Indifference to evil is a greater evil.

The Author Professor of Law Cornell University Law School and Director of the Berger International Studies Program and Institute for African Development at Cornell University