Chapter 4: Prosecutorial services

4 Prosecutorial services

 

THE CRIMINAL JUSTICE SYSTEM IN ZAMBIA
Enhancing the Delivery of Security in Africa

 

African Human Security Initiative

Monograph No 159, April 2009

 

LEGAL FRAMEWORK

In Zambia, the power to institute and undertake criminal proceedings is vested in the Director of Public Prosecutions (DPP). The office was created in terms of the Constitution but set up under the executive and not the judiciary branch. The DPP is appointed by the President subject to ratification by the National Assembly.

The functions of the DPP are to:81

• Institute and undertake criminal proceedings against any person before any court other than a court martial
  
  

• Take over and continue such criminal proceedings as have been instituted by any other person or authority
  
  

• Discontinue at any stage, before judgment is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority
  

The powers of the DPP are not contained in any specific Act, but mainly in sections 81–89, 241–243, 251 and 321A of the Criminal Procedure Code. The DPP can enter a nolle prosequi82 to stop proceedings and has the responsibility to sanction or consent to the institution of certain types of charges. He has the power to appoint public prosecutors from among any public servants in any district. The DPP has sole prosecuting powers irrespective of the fact that there are prosecutors in other institutions such as the ACC, the DEC and the Zambia Revenue Authority (ZRA). The National Pensions Board also derives its authority from the powers delegated to it by the DPP.

The DPP has the power to appeal any judgment of the subordinate court that he feels is legally wrong or in excess of the law. This makes it a key institution in the effective prosecution of cases of corruption and other abuses of public office. Unfortunately, during the regimes of both Kaunda and Chiluba the authority of the office of the DPP was eroded because there was a reluctance to check government excesses. While newer institutions have been set up with semi-autonomous structures, the DPP has remained an integral part of government. This lack of autonomy has compromised its role and its prosecution is often considered to be inconsistent. It is essential to strengthen this office, particularly in view of the slow judicial process.

ORGANISATIONAL CAPACITY

There are five provinces in which the DPP’s office has no representation, namely Eastern, Western, Northern, Luapula and North-Western provinces. Even though there is an office in Central Province, no advocate is stationed there. This may partly explain the level of public ‘ignorance’ about this office. Prosecution in the country is yet to be coordinated under the direct supervision of the DPP.83

PUBLIC PERCEPTION

Public awareness

The average Zambian citizen knows little about the role and function of the DPP. In the sample used for the survey questionnaire of this review, only 13 per cent of respondents knew anything about the role and responsibilities of the DPP.

 

The views expressed by two focus group participants in Lusaka and Solwezi cited in box 7 typify public ignorance about the DPP’s office.

 

Appointment of the DPP

There is a growing public perception that the office of the DPP lacks prosecutorial independence in criminal cases that involve high-ranking public officials. The Anti-Corruption Commission has in the past criticised the DPP for preventing some high-profile prosecutions. The majority of the DPP’s prosecutions are carried out not by lawyers in chambers but by police officers that are appointed as prosecutors in the name and authority of the DPP and they only prosecute cases in the lower courts. Since police prosecutors are not trained lawyers, they do not perform very well against well-qualified defence attorneys.

Participants were of the opinion that the current manner in which the DPP is appointed gives excessive power to the President and undermines the independence of the institution. However, a minority of participants who were comfortable with the current manner of appointment argued that MPs are elected people’s representatives capable of making a decision on whether or not the ‘appointed’ or ‘nominated’ individual meets the requirements of the office.

Nevertheless, respondents who knew about the DPP’s office did not think that its operations were free from interference. The general consensus in focus group discussions was that it is very difficult to advance a view that is not shared by the authority that appointed you. It is important to emphasise that from the nature of the DPP’s responsibilities, it inevitably requires regular interaction with the appointing authority. Some participants did feel that the aim of the method of appointment was to provide checks and balances in the investigation and prosecution of corruption cases. However, others held the view that this manner of appointment in fact constrains the operations of the DPP and creates the potential for interference with the discharge of justice.

Security of tenure

According to some participants all prosecutors, including those in the DPP’s office, should enjoy security of tenure similar to that enjoyed by the DPP. This will somewhat enhance their autonomy and facilitate a culture of professionalism in their operations. A major concern is that security of tenure of the DPP is meaningless given that the DPP’s office is not funded directly by Parliament but through the Ministry of Justice. The security of tenure needs to be backed by financial autonomy to plan and execute various decisions. The argument is that under the current circumstances, it is less likely that a DPP would for example be keen to support, let alone spearhead, investigation of a government minister who is involved in funding of the office. These are realities that should not be understated.

Nolle prosequi

General concerns were expressed about the ability of the DPP to dispose of cases by means of a nolle prosequi. The case of a permanent secretary from the Ministry of Health, who was later charged with one count of abuse of authority of office and two counts of corruption, highlighted issues of external interference in the operations of the DPP’s office. When a nolle prosequi was initially entered in this specific case, there was an outcry from many stakeholders and interested parties, including some foreign diplomats, as box 8 shows. The result was that the state withdrew its support for the nolle prosequi and the DPP was directed to reinstitute criminal proceedings against the permanent secretary. Observers agreed that this turn of events underscored the vulnerability of the DPP’s office to external interference.84

 

Fragmentation

The DPP’s office lacks the necessary capacity partly because of professional fragmentation. The location of public prosecutors in different institutions is perceived to have a negative impact on the ability of the DPP’s office to deal with prosecutorial matters effectively and expeditiously and generally cannot benefit from the advantages associated with having a cohesive pool of professionals. As a result, it contributes to difficulties in enhancing prosecutorial capacity in the DPP’s office. Therefore the recommendation is that all public prosecutors function under one umbrella institution.

NATIONAL CRIMINAL PROSECUTIONS POLICY

Delays in dealing with criminal cases, congestion in remand prisons and high levels of acquittals have been cited as evidence of inefficiency in the prosecution service.85 In order to improve the efficiency and effectiveness of the DPP’s office and safeguard its independence, the government mandated the Ministry of Legal Affairs to produce a comprehensive national criminal prosecutions policy (chapter 34 of the Laws of Zambia). The policy document is the first step towards building a national prosecution service that would be open and honest in its dealings with the public.

A draft national criminal prosecution policy was drawn up and among others contained the following recommendations:

• The government should enact legislation to establish an independent national prosecution service
  
  

• The prosecution function should be separated from the investigative function and accordingly the practice of appointing police officers as prosecutors should be discontinued
  
  

• Public prosecutors should be seconded from the DPP’s office to the Zambia Police Service, ACC, DEC and other law enforcement agencies to deal with cases as they arise. This should reduce the delays occasioned by the need to transfer cases to the DPP’s office for legal advice or consent to prosecute

However, despite the fact that some of these recommendations were made in 2000, none of them have been implemented to date.

RECOMMENDATIONS ON THE NATIONAL CRIMINAL PROSECUTIONS POLICY

Although the draft national criminal prosecutions policy was presented in March 2002, the document has not yet been finalised. This should be done as a matter of urgency and specifically the following aspects should be addressed:

Appointment of the DPP

Legislation should be put in place on the appointment of the DPP in which a method is adopted that is more likely to guarantee the independence of the DPP’s office. Two recommended methods for appointment are:

• The Judicial Service Commission should recommend a person for the position of DPP, who is then appointed by the President. Suitable individuals should be invited to apply for the position and then be selected on merit after a process of selection that includes formal interviews
  
  

• A tribunal of judges or a board of independent persons could recommend two or three candidates, in order of preference for appointment, to the position of DPP by the President. The tribunal or board should provide reasons for their selection and preference. Such a tribunal or board should be appointed through a constitutional mechanism

Financing

Government should consider the possibility of financing the DPP’s office directly through Parliament rather than a government ministry. This will not only enhance the independence of the DPP’s office but also promote realistic and effective financial planning. It is envisaged that such financial autonomy would, in the long run, help to build the capacity necessary for the effective operation of the DPP’s office.

Transparency

In order to enhance accountability and transparency in the decisions made by the DPP, legislation should be reviewed to ensure that reasons for entering a nolle prosequi are made public. Furthermore, the restructuring of the DPP to provide for prosecutors attached to various agencies, such as local authorities, the ACC, the DEC, the ZRA, and the National Pensions Board, must be considered to empower these agencies and harmonise standards by bringing all public prosecutors under one umbrella institution.

Alternatively, the recommendation made in the draft policy on secondment of public prosecutors from the DPP’s office to the different law enforcement agencies to deal with cases as they arise should be implemented.

Community awareness

Government, in collaboration with the Law Association of Zambia and civil society organisations working in the areas of human security, human rights and the maintenance of good governance, should institute programmes aimed at sensitising the general public on the functions of key constitutional offices such as that of the DPP.