BY DR MASIMBA MAVAZA
“Accountability works. It’s social glue… Because if you’re not accountable, you can do anything.” M Morton USA
Prosecutors face a myriad of challenges that can influence their decisionmaking and performance. These challenges include persistent problems with inadequate resources, staff retention, and accountability, as well as contemporary issues related to changing technology and case law. In some cases, persistent issues intersect with new issues, such as the role of data in the form of digital and forensic evidence. It is so easy to blame the prosecutor for anything. Any organisation which deals with criminality will always blame the prosecution for their own inefficiency.
The Zimbabwe Anti Corruption Commission drew their swords and aim them against the prosecution.
The Zimbabwe Anti-Corruption Commission (ZACC) wants to be given prosecution powers to take cases it is investigating to court in order to speed up the process.
Zacc argues that speeding up the prosecution of cases will enhance public confidence in the Government’s resolve to fight corruption.
Within a very short period of time, the ZAAC has managed to become operative and to offer training programmes, seminars and workshops. ZAAC is a pioneering institution that aims to overcome current shortcomings in knowledge and practice in the field of anti-corruption. It functions as an independent centre of excellence in the field of anti-corruption education, training, networking and cooperation, as well as academic research. It pursues a holistic approach which is international, interdisciplinary,intersectoral, integrative and sustainable.
Maintaining a strong rule of law does not necessarily come automatically. It is an everyday challenge. We are all called upon every day to uphold the rule of law when carrying out our duties. This is not always easy, especially in difficult economic times.
Now we need to understand the role of prosectors. If the prosecutorial powers are vested in one organisation it becomes serious human rights breach. ZAAC seems to forget that it is not acquiring all powers which makes an organisation effective.
We do not doubt that the prosecutor is the one who owns the case. ZAAC claims that there is s pervasive prosecutorial misconduct in many corruption cases. ZAAC fell short of accusing the prosecutors as being corrupt. In every criminal prosecution the prosecutor has more control over life, liberty and reputation than any other person in Zimbabwe Justice system.
Prosecutors hold tremendous power, having wide discretion in whether or not to bring criminal charges against someone and what those charges should be. But they also have constitutional obligations to ensure that those accused of a crime receive all the evidence that might aid the accused person’s defense before trial. The Blame culture’ between ZAAC and prosecutors over corruption cases is ‘retraumatising the nation resulting in the loss of confidence in the justice system. ZAAC warns of a ‘catastrophic failure of criminal justice’ in prosecution of corruption case, while law experts fear that finger-pointing’ and ‘division’ is hampering investigations in corruption cases.
The request by ZAAC is the spirit of abuse of due process.
Prosecutors are put in a very precarious position by the accusations of inefficiency and corruption.
The prosecutor’s have several challenges that have been persistent over time, such as witness intimidation, struggles to retain staff, and inadequate case-management systems. Many of these ongoing issues have evolved with or been exacerbated by emerging trends in technology and information.
The most culprits in prosecution of corruption cases is the ZAAC investigators themselves. Some of them believe that they are the law unto themselves. They bully the prosecutors and are never willing to listen. They force prosecutors to rush a case before courts for trial without proper preparation. The ZAAC investigators behave like school boy bullies who listerns to nobody. They threaten prosecutors and even some judges or judiciary officers.
The investigators are motivated by their emotions and do not wish to have justice take its place. Now having a case rushed to court without preparations the result will be acquittal. Once this happened the target for humiliation and blame is the prosecutor. The prosecutor in a corruption court is between an incompetent investigator and an angry citizenry. The ZAAC Investigators who are virgins to manners, respect and courtesy are ignorant of more-contemporary issues related to the growing volume and diversity of the data used for prosecutorial functions, particularly digital information.
This year, more than 180 investigations were finished and 10 dockets submitted for prosecution but only four reached the final judgment, all with convictions.
In her end-of-year statement Zacc chairperson Justice Loice Matanda-Moyo said investigators were concerned with the slow pace that cases were taken up for prosecution.
This attitude of ZAAC shows that ZAAC is ticking boxes and not delivering justice.
“In the area of investigations, the commission has surpassed the annual target of 180 dockets submitted to the National Prosecuting Authority for prosecution. The commission remains concerned with the speed at which the cases are processed through the criminal justice system,” she said.
This statement is pervasive and contrary to public morales. In the business of delivering justice Officials must not work on targets. How can you make a target of how many people you need to arrest during s legal year. This means that investigators would be arresting without due diligence but only to meet the target. The system of setting targets in criminal investigations is in itself unlawful and it causes problems of catch and release. People are arrested so that targets are met.
“We have been engaging the National Prosecution Authority and Judicial Service Commission to implement necessary reforms in order to enhance public confidence in the fight against corruption. I am pleased to note that we are finding each other in that regard.” Said Justice Moyo
Apart from their responsibility to dispose criminal cases for prosecution, prosecutors in every play some important roles in criminal investigation despite the differences in basic legal principles. In some instances prosecutors have a limited role in carrying out investigation.
In Zimbabwe prosecutors are by law responsible for leading investigations by themselves and the police are only an investigatory body of the public prosecution office, whereas in reality it is the police who are actually leading investigations in most cases.The primary responsibility of investigation lies with ZAAC.The Zimbabwean system is that prosecutors play no role in investigation as such, but do exercise their advisory or supervisory authority to guide the police investigation in such ways as advising or instructing the police to carry out their investigation to certain direction. This duty is the same which is supposed to be done with ZAAC cases. Unfortunately ZAAC is fully drowned in a self gratification illness where they believe that they know everything.
Giving prosecutorial powers to ZAAC will be a disaster snd a direct assault on the rule of law.
In normal circumstances ZAAC must allow prosecutors to play their role in
1. Giving Guidance/Instructions to Police or ZAAC Investigators
One of the most important and common roles of prosecutors is to check investigations against due process of law, while keeping the effectiveness of investigation. In order to meet the rule of law standards, promote acceptance of court decisions by the accused and strengthen public confidence in the police’s right to conduct searches and seizures in private premises, the investigation work of the police should be, at least in principle, critically monitored. Prosecutors’ authorities in supervising and giving advice/instructions to police investigators can be viewed in this regard. Due consideration should be given to the proper degree to which the division between the responsibilities for investigation can be kept apart from the responsibility for independent conduct of the prosecution.
while prosecutors need to be sensitized to the operational and strategic plans of police; they should not assume the “policing” role in general and restrict themselves to screening the police information in a more legal manner. So the request to have all the powers to be invested in one hand ZAAC is wrong at law.
2. Supplementing ZAAC Investigations
If prosecutors are empowered to conduct investigations, prosecutors, if needed so as to ensure convictions in court, can supplement police investigations. In some countries, prosecutors are empowered to instruct police officials to assist their investigations. In this context, some participants pointed out that a conflict could occur between such an instruction to the police officer from prosecutors and the organizational chain of command of the police. This simply means that there is a danger of prosecutors to sex the evidence in order to get a conviction. This is the reason why it is not advisable for ZAAC to be given prosecuting powers.
3. Conducting their Own Investigations
In the countries where prosecutors are empowered to conduct investigations, prosecutors can initiate their own investigations. In many cases, prosecutors conduct their own investigations in such areas that prosecutors have competitive advantage over the police. Those areas include large-scale economic crime, political corruption cases, and so forth.
For example, the Special Anti Corruption Unit the public prosecution office set up a pilot investigation unit where investigation relating to property assets is conducted separately from other investigations. This unit has the task of among others tracing criminally tainted assets and of freezing them for the benefit of the state or of the victims of the offences concerned. The classical functions of clearing up the offence and conducting the criminal prosecution are the responsibility of other prosecutors acting in the same case. This central office for “organized crime and corruption” principally has a coordinating and response function for legal and organizational questions. It is also responsible for organizing and coordinating supra- departmental training events and exchanges of experience, the drafting of forms, and the assessment of success, including securing the assets frozen.
It is worth noting that, even in the jurisdiction of England and Wales of the United Kingdom where the principles of separating strictly the responsibility for investigation and prosecution was established in 1986 on the creation of the Crown Prosecution Service, such principles were swiftly jettisoned in relation to serious fraud offences. The Serious Fraud Office, which is staffed by lawyers, accountants and others with relevant experience, was created in 1988. It is a unified organization properly resourced with statutory powers of investigation. Working closely with the police, this Office controls investigation and prosecution.
After undergoing lengthy, laborious and complicated investigation process, ZAAC or police investigators generally tend to develop a feeling of exclusiveness, and feel that the entire investigation domain is their responsibility. As a result any sort of advice and instruction from outside is taken as interference and unnecessary. Resistance is shown if they are told to bring more substantial evidence, or amend or improve the evidence collected. Police officers and organizations tend to take their entire work and especially the case handling as a professional and skilled job. Though they work and do the investigation within their own legal, and procedural codes, their practical and operational framework makes them believe that they have their own chain of command system which works as efficiently as prosecutorial agencies and which they believe, can provide them guidance and instructions.
This is the major reason why most cases are thrown out for lack of sufficient evidence.
Prosecutors have demanding jobs and high caseloads, and we recognize that they sometimes make honest mistakes, so it is insensitive to heap all the blames on prosecutors.
Sometimes those mistakes are serious enough that a person convicted of a crime will be entitled to have his or her conviction thrown out, even if the prosecutor didn’t intend to violate the convicted person’s rights.
With academic background in jurisprudence hence having greater sensitivity to human rights, rule of law and due process, prosecutors tend to develop more legalistic approach in handling police files. Prosecutors will first examine the appropriateness of evidence and will then evaluate its fitness for the court proceedings. Pressure from colleagues in an investigating agency for prosecution may embarrass him in case his disposition appears to lead to acquittal.
Investigators carry a dominating air around the prosecutors and they force their case to be put before court. This only shows you how dangerous it will be for ZAAC to investigate and prosecute at the same time. God forbids.
These mutually repellant psyches of investigators and prosecutors have hampered the smooth working relationship between the two.
The superiority complex which blinds the investigators causes problems when Conflicting Views over Case Disposition come out. It becomes clear that the investigators or police feel frustrated when the prosecutors’ case-disposition conflicts with the expectations of the investigator. It is totally disappointing for investigators if an arrested suspect is set free by prosecutors on the ground that the prerequisites have not been fulfilled for keeping the suspect in custody, or where investigatory activity despite the great deal of time and effort involved leads to the termination of the proceedings.
In such cases prosecutors also feel stress, which may lead to negative influence on the working relation between the ZAAC investigators or police,and prosecutors.
There is a serious Lack of Shared Common Goals
there had been a lack of confluence in the aims and objectives of the investigators and the Prosecution Service. The conviction of charged defendants had not been considered as a priority in the prosecuting process but it is the aim of the investigators in their policing plan. A lack of sharing common goals with prosecutors as such can cause difficulty for prosecutors to motivate ZAAC to produce quality files on their investigations.
In such cases where the Investigators and prosecutors do not share the common goals in criminal proceedings, the investigators may develop practices, which are not compatible with the prosecutorial purposes, such as relying only on information that is not admissible as evidence in the court.Most criminal prosecutions in the lower courts are conducted by prosecutors who are full-time serving members of the police force. Even though there should be no disagreement between police investigators and prosecutors on the disposition of cases in such a system, a lack of independence of prosecutions in such a system leads to a lack of objectivity among prosecutors, which results in inappropriately screened prosecutions.
Because of the bullish style used by the investigators they feel inhibited to write an advice, which may substantially affect the investigations. A lack of appropriate supervision of and guidance to investigations in such a system may also result in a low conviction rate in the court.
There should be a clear thick line between prosecution and investigators. ZAAC should not be given prosecutorial powers if the rule of law is to be observed. It is reasonable to create an office which communicate with others in the interest.
The fact that we are fighting corruption does not mean that we corrupt the law in order to catch the corrupt. Finally, we’re trying to prevent misconduct before it occurs. ZAAC and prosecutors’ offices must expand their meeting grounds. ZAAC investigators must come to the level of reality and take off the jackets of stubbornness and utter rudeness. Early, open and mandatory discussions is a systematic change that makes it much easier for prosecutors to avoid mistakes, and much harder for those who might be tempted to cheat to get away with hiding evidence of a person’s innocence or guilty.
It will be a sad day when ZAAC is invested with all powers. That is mot justice.
Let the prosecutors be prosecutors. They are lawyers.
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