BY TATENDA CHITAGU
PROSECUTORS from the army, air force and police have 18 days to vacate the civilian courts, a development which will ensure that a Constitutional Court (ConCourt) ruling of 2019 that barred them from operating at civilian courts is fully implemented.
On February 20, 2019, the ConCourt, sitting as a full bench, unanimously banned the use of State security agents as public prosecutors in civilian courts. The ConCourt said their secondment to the National Prosecuting Authority (NPA) was a serious violation of the Constitution.
The ruling, which becomes effective on February 20 this year, came following an application filed by the Zimbabwe Law Officers’ Association and former public prosecutor Derek Charamba, in which the parties sought an order compelling Prosecutor-General (PG) Kumbirai Hodzi and Justice minister Ziyambi Ziyambi to stop engaging police and army personnel as public prosecutors.
The ConCourt gave them until February 20 to vacate the civilian courts.
In January 2015, the late former Chief Justice Godfrey Chidyausiku, who then headed the nine-member ConCourt bench, reserved judgment in the matter after submissions were made by the PG’s representative Sharon Fero and applicants’ lawyer, Advocate Tawanda Zhuwarara.
But on February 20 last year, ConCourt judge Justice Antoinette Guvava delivered the unanimous judgment and read out the operative part which ordered the PG to disengage the services of security officers from the NPA over two years.
“The engagement by the first respondent (NPA) of the serving members of the security services to prosecutorial duties is in contravention of section 208 (4) of the Constitution … It is, hereby, ordered that: the first respondent (NPA) is directed to disengage all members of the security services within 24 months from the date of this order,” Justice Guvava said.
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During the hearing, Justice Chidyausiku took the PG’s Office to task, demanding an explanation on why NPA wanted its job to be done by police officers and soldiers still in service.
“Why do you want the police to do your job? We in the Judiciary do not want to have police officers as magistrates,” Justice Chidyausiku said then.
“Give us one good reason why we should have police prosecutors as opposed to civilian prosecutors … In principle, I do not see the reason why the PG would want his job done by the police,” he said.
In response, Fero said the practice of engaging security forces as public prosecutors had been in existence since time immemorial, adding that the main reason was the unattractive conditions of service offered by NPA.
Fero also said there were no provisions in the Constitution that precluded security forces from being engaged as prosecutors.
But in his submissions on behalf of the applicants, Zhuwarara said the use of security forces to perform prosecutorial duties in civilian courts was in violation of section 208(4) of the Constitution.
He said that engagement of the police and army officers to prosecute in civilian courts was a misnomer, adding that the practice could not be condoned, tolerated or excused in a democratic society.
“The mechanics of birthing a public prosecutor are different from those put in place to bring about a police officer or an army officer … They (police and army prosecutors) are part of the security system and cannot be engaged in civilian institutions since they are bound by specific rules of discipline,” he said.
Charamba yesterday said they would wait for the PG to comply with the order, failure of which they would take him to task.
“We will go back to court if they defy, our papers are ready. We are giving them time to comply with the order. The NPA was given two years which is ample time to recruit and the prosecutors to wind up their cases,” Charamba said.
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