PATEL JCC: After hearing counsel in
this matter, we handed down the following order:
“It is ordered
that:
1. The
application be and is hereby dismissed with costs on a legal practitioner and
client scale in favour of both amici
curiae.
2. It is
apparent from the record of these proceedings that orders were issued by the
High Court in Case No. HC 10203/12 and by the Supreme Court in Judgment No.
SC1/14 which was confirmed by this Court in Case Number CCZ 8/ 14.
3. It is
also apparent that the applicant has disobeyed those orders in clear
contravention of s 164 (3) of the Constitution of Zimbabwe.
4. In
terms of s 165 (1)(c) of the Constitution of Zimbabwe, this Court is obligated
to uphold the rule of law and to make such orders as are necessary to achieve
that purpose in accordance with its inherent jurisdiction.
5. It is
accordingly ordered that:
(i)
The applicant is committed to imprisonment
for a period of 30 days the whole of which is suspended on condition that the
applicant complies with the above orders of the High Court and the Supreme
Court by issuing the requisite certificates nolle
prosequi within 10 days of the date of this order.
(ii)
In the event that the applicant fails to
comply with this order, he shall in his personal capacity be barred from
approaching or appearing as a legal practitioner in any court in Zimbabwe.
6. Full
reasons for judgment will follow in due course.”
These are the reasons for the aforestated order.
BACKGROUND
This is an ex parte application brought by the Prosecutor-General, duly
appointed in terms of the Constitution, for the determination of the question
of his constitutional independence and protection from the direction and
control of anyone in terms of ss 258, 259 (1) and 260 of the Constitution.
It is important to put this application into perspective by looking at the background
facts that explain the question to be determined by this Court.
The applicant has
brought this application pursuant to orders granted by the High Court and the
Supreme Court requiring him to issue certificates nolle prosequi in two matters in which he exercised his discretion
not to prosecute. The first of these cases was brought as an application under Case
NO. HC 10203/12 by one Francis Maramwidze against the Commissioner General of
the Zimbabwe Republic Police and the Prosecutor-General, seeking an order
directing the prosecution of one Dr Munyaradzi Kereke or, alternatively, a
certificate nolle prosequi. In this
matter, allegations had been made that Kereke had sexually assaulted a minor
child whose guardian was Maramwidze. On the same day, on 3 March 2014, Zhou J
granted Maramwidze the alternative relief he sought by ordering the applicant
to grant him a certificate nolle prosequi
in terms of s 16 (1) of the Criminal
Procedure and Evidence Act [Chapter 9:07].
On 14 May 2014, the written reasons for judgment were delivered by the learned
judge in HH 208-14.
The applicant has
not complied with that order given by Zhou J as at the hearing of this
application. Maramwidze brought a contempt of court application against the
applicant under Case No. HC 480/15 on 20 January 2015, which application
is opposed by the applicant. The basis of his opposition in that matter is that
the order of Zhou J is unconstitutional as s 260 of the Constitution makes him absolutely autonomous in the
discharge of his prosecutorial functions and exercise of prosecutorial
discretion and that such exercise is not susceptible to judicial review. On 16 October
2014, the Supreme Court struck off an appeal by Kereke which sought to have the
order by Zhou J directing the issuance of the certificate nolle prosequi set aside. The applicant himself did not appeal
against the order or judgment given by Zhou J and, even though the appeal by
Kereke was dismissed, he has persistently refused to comply with the judgment
of the High Court.
The second case
involved Telecel Zimbabwe (Pvt) Ltd. The applicant decided not to prosecute the
suspects in a matter involving Telecel, prompting it to seek a certificate nolle prosequi which was declined. A
review of that decision was dismissed in the High Court on the ground that a
company had no right to institute a private prosecution. Telecel appealed
against that judgment, which appeal was heard on 22 July 2013 under Civil
Appeal No. SC 254/11. The Supreme Court overturned the High Court decision by
allowing the appeal, thereby setting aside the decision not to grant a
certificate nolle prosequi, and unanimously
ordered the Prosecutor-General to issue a certificate nolle prosequi to Telecel within 5 days of the grant of its order.
Aggrieved by the Supreme Court decision under SC 1-14, the applicant filed an
application to this Court, purportedly brought in terms of ss 167 (1) and 176
of the Constitution. He sought the setting aside of the order of the Supreme
Court. On 8 October 2014, this Court dismissed the application with costs under
Case No. CCZ 8-14. That judgment also confirmed the decision in SC 1-14. The effect of such dismissal is that the order
of the Supreme Court is still extant. The applicant has, yet again, not
complied with that order.
The applicant has
not complied with both orders but has approached this Court in an ex parte application to challenge the
constitutionality of those orders as juxtaposed with s 260 of the Constitution.
This he attempts to do without making mention of the High Court and Supreme
Court cases which the present application clearly stems from. The application
is ex parte notwithstanding that the
very root of this constitutional application are the two cases involving
Maramwidze and Telecel. It is not known why the applicant did not join these
parties, despite their clear interest in the matter, instead of making this
application on an ex parte basis.
It is the
applicant's contention that both orders in the High Court and the Supreme Court
are a direct violation of his independence. The basic argument by the applicant
is that he should not be forced to issue a certificate nolle prosequi. Such absolute independence, he argues, is provided
for in terms of s 260 (1) (a) and (b) of the Constitution in the exercise of
his duties, which are defined in s 258 as read with s 259(1). Section 260 of
the Constitution, which the applicant strongly relies upon, provides as
follows:
“(1) Subject
to this Constitution, the Prosecutor-General—
(a) is independent and is not subject
to the direction or control of anyone; and
(b) must exercise his or her functions
impartially and without fear, favour, prejudice or bias.
(2) The
Prosecutor-General must formulate and publicly disclose the general principles
by which he or she decides whether and how to institute and conduct criminal
proceedings.”
The applicant's
constitutional mandate is to head the National Prosecuting Authority, as
provided for in s 259 (1) of the Constitution. The National Prosecuting
Authority's functions are set out in s 258:
“There
is a National Prosecuting Authority which is responsible for instituting and
undertaking criminal prosecutions on behalf of the State and discharging any
functions that are necessary or incidental to such prosecutions.”
The applicant
argues that his reading of these sections is that, in the discharge of his
prosecutorial functions and exercise of prosecutorial discretion, he is
absolutely independent and not subject to the control of anyone else. He cites
as examples that he is independent of the police, Cabinet, victims of offences
and the courts. He contends that this independence is the core constitutional
tenet that binds the office of the Prosecutor-General, that the eventual
decision of whether or not to prosecute rests with the Prosecutor-General and
that he should not be pressurised by anyone else. The applicant also argues
that any judicial interference is against the doctrine of separation of powers
and the legitimate autonomy that is conferred on the Prosecutor-General by the
Constitution. He accepts only the ground of irrationality, as per the Wednesbury principles, as the basis upon which the exercise of his
duties can be susceptible to judicial review. He argues that the decision to
withhold a certificate nolle prosequi
is a function that falls within the purview of his prosecutorial discretion and
is not open to review by the courts.
There is no
respondent in this matter but there is the intervention of the two amici curiae, Mr Mafukidze and Mr Warara,
who urged this Court to dismiss this application as an abuse of its process. Mr
Mafukidze placed reliance on the
cases of Rogers v Rogers
and the oft-quoted case of Smyth v Ushewokunze to
demonstrate the expectations of public prosecutors, as being dedicated to the
achievement of justice and being above reproach and impartial, and to emphasise
the higher standard of conduct expected of the Prosecutor-General as leader of
the National Prosecuting Authority. Mr Mafukidze
contends that this application is strange in that it flows from an unlawful
disobedience of two extant court orders. This is contrary to s 164 (3) of the
Constitution which states that an order or decision of a court binds not only
the State but all persons, institutions and agencies to whom it applies and
must be obeyed by them.
It was further
argued that, without a direct challenge to s 16 (1) of the Criminal Procedure
and Evidence Act, this Court must find that it is unable to determine this
application on the merits. To substantiate this position he relied on the case
of ANZ (Pvt) Ltd v Minister of
State for Information and Publicity. He
also took issue with the fact that the applicant did not make full disclosure of
the Maramwidze and Telecel cases, which are quite obviously the cases from
which this matter emanates.
Mr Mafukidze argued that, even if the Court
were to determine this application on the merits, it should fail in that
prosecutorial independence is itself subject to the Constitution and the law.
He urged the Court to find in favour of the constitutionality of s 16 (1) of
the Criminal Procedure and Evidence Act which imposes a statutory duty upon the
applicant to issue certificates nolle
prosequi. It was also argued that the power to issue authoritative
interpretations of the Constitution and the law in general lies with the courts
and that any attempt to negate that power undermines the rule of law. Moreover,
the relief sought effectively outlaws private prosecutions. In addition, it would
amount to a declaration finding s 16 of the Act to be unconstitutional.
COMPLIANCE WITH THE LAW
The primary question
before this Court is whether there is a law that compels the Prosecutor-General
to issue certificates nolle prosequi.
In answering that question, it is important to acknowledge the well-known canons
that the Constitution is the supreme law and that the rule of law is a founding
principle of our nation.
The quintessence of the rule of law is this, and simply this, that where there
is a law it must be complied with. In National Director of Public
Prosecutions and Others v Freedom Under Law
the court cited the dictum of Ngcobo J in Affordable
Medicines Trust & Others v
Minister of Health & Others:
“The exercise of
public power must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality, which is part of that law. The doctrine of
legality, which is an incident of the rule of law, is one of the constitutional
controls through which the exercise of public power is regulated by the
Constitution.”
The Constitution
itself makes the Prosecutor-General's independence subject to the Constitution
and the law through the strictures of s 261 (1) which states that:
“The
Prosecutor-General and officers of the National Prosecuting Authority must act
in accordance with this Constitution and the law.”
This is also seen
in the very s 260 (1) which the applicant relies upon to bolster his
independence. This provision makes it crystal clear that the
Prosecutor-General's independence and autonomy in the exercise of his functions
and powers are “subject to this Constitution”. It follows that the applicant is
enjoined at all times to observe both the Constitution and the rule of law.
At the relevant
time, before ss 13 and 16 of the Criminal Procedure and Evidence Act were
amended in 2016, it was obligatory for the Prosecutor-General to issue a
certificate nolle prosequi in any
case where he declined to prosecute and the party requesting the certificate
was able to show some substantial and peculiar interest in the matter. See the
decision of the Supreme Court in the Telecel
case (SC 1-14) referred to earlier. See also the decision of this Court in Norman
Sengeredo v The State. There
is no magic about the interpretation of ss 13 and 16 of the Criminal Procedure
and Evidence Act. Section 16 uses the word “shall” which connotes being
compelled to do as provided. Once the Prosecutor-General declines to prosecute
and it is found that the private prosecutor has a substantial and peculiar interest
in the matter in terms of s 13, the former is peremptorily required to issue a
certificate nolle prosequi to the
latter.
Section 12 (1)(d)
of the National Prosecuting Authority Act [Chapter7:20]
also provides to the same effect:
“(1) The Prosecutor-General –
(a)…
(b)…
(c)…
(d) shall issue certificates nolle
prosequi in accordance with the Criminal Procedure and Evidence Act [Chapter
9:07], to persons intending to institute private prosecutions, where the
Prosecutor-General chooses not to prosecute”.
While this law was
enacted after the underlying matters had already been instituted, two things remain
clear. The first is that this section merely solidifies the position already in
existence in s 16 of the Criminal Procedure and Evidence Act to which it
alludes. Secondly, when this provision came into existence, the applicant
should simply have complied with it and issued the requisite certificates nolle prosequi.
The question
before this Court is not the constitutionality of s 16 as read with s 13 of the
Criminal Procedure and Evidence Act or of s 12 of the National Prosecuting
Authority Act. The question is whether or not there is a law that compels the
applicant to issue the certificates nolle
prosequi; and this question must be answered in the affirmative. There are unambiguously
crafted statutory provisions that compel him to do so and he must comply with them.
The rule of law demands that a law that is in existence must be complied with. The
law is an instrument for the regulation of all conduct, both public and
private. The performance of his prescribed duties by the applicant is no
exception. It is subject to regulation by law, i.e. the governing statutory provisions as interpreted by the
courts.
The
time-honoured doctrine of separation of powers that the applicant himself has invoked
is equally applicable in this matter. The doctrine distinguishes three arms of
State: the Legislature which has the power to make, amend and repeal rules of
law; the Executive which has the power to execute and enforce rules of law; and
the Judiciary which is endowed with the power, if there is a dispute, to
determine what the law is and how it should be applied in the dispute. Lord
Mustill, in R v Home Secretary, Ex parte Fine Brigades Union, defined the doctrine as formulated in
England as follows:
“It is
a feature of the peculiarly British conception of the separation of powers that
Parliament, the executive and the courts have each their distinct and largely
exclusive domain. Parliament has a legally unchallengeable right to make
whatever laws it thinks right. The executive carries on the administration of the
country in accordance with the powers conferred on it by law. The courts
interpret the laws, and see that they are obeyed.” (my emphasis)
Where a court
interprets a law, it fulfils its role under the separation of powers framework.
When it interprets a certain law to compel someone to do something, it is not
the court but the law that compels that person to do so. This application is
founded on the wrong premise that the applicant must not be compelled to abide
by the law, whether by an order of mandamus
or otherwise. That premise is fundamentally flawed and patently untenable.
The applicant does
not want to comply with the law and he has not even challenged its validity,
though that would not have entitled him to disobey it. The position of any law
that is challenged for alleged invalidity is settled. See Econet
Wireless (Pvt) Ltd v The Minister of Public Service Labour and
Social Welfare & Others, where the Supreme Court per Bhunu JA held that:
“It is a basic
principle of our law which needs no authority that all subsisting laws are
lawful and binding until such time as they have been lawfully abrogated. If,
however, any authority is required for this proposition, one need not look
further than Black on the Construction
and Interpretation of the Laws (1911) page 10 para 41, where the learned
author says:
'Every act of the
legislature is presumed to be valid and constitutional until the contrary is shown.
All doubts are resolved in favour of the validity of the Act. If it is fairly
and reasonably open to more than one construction that construction will be
adopted which will reconcile the statute with the constitution and avoid the
consequence of unconstitutionality.'
What this means is
that all questioned laws and administrative acts enjoy a presumption of
validity until declared otherwise by a competent court. Until the declaration
of nullity, they remain lawful and binding, bidding obedience of all subjects
of the law.”
What can be
gleaned from this is that not only does an unchallenged law compel full obedience
but that even a law that is under challenge before it is declared invalid
command the same level of obedience. Even if the applicant had properly taken
the point that the law operates against his constitutional mandate to be
independent, he would still have had to first comply with the law and issue the
certificates nolle prosequi, because the law remained extant. The applicant in this matter has not
done so but has attacked the orders of the High Court and the Supreme Court in
the Maramwidze and Telecel cases as interfering with his
independence. This does not exempt him from complying with the law, as it is
clearly stated.
In terms of ss 260
(1) and 261(1) of the Constitution, as read with ss 13 and 16 (1) of the
Criminal Procedure and Evidence Act, the applicant's discretion is limited to
the decision whether to prosecute or not. Once that decision is made, and the
intended private prosecutor has satisfied the criterion of substantial and
peculiar interest, he has no further discretion in the matter. The submission
by Mr Mpofu that the discretion
extends to whether or not to issue a certificate nolle prosequi after the election not to prosecute is at total
variance with the provisions of ss 13 and 16 of the Act. There is no residual
discretion which reposes in the Prosecutor-General except as provided for in
those sections. The attempt by the applicant to extend his discretion to the
issuance of certificates nolle prosequi
is not supported by the law.
The High Court and
the Supreme Court have already issued orders that the applicant is obliged to
issue certificates nolle prosequi in
the two cases in question. Both courts made those orders upon their fully
considered interpretation of s 16 of the Act. The applicant has not challenged,
not successfully at any rate, the interpretation of that section by those
courts. As far as we are concerned, their interpretations are in accordance
with s 16 of the Act. In other words, in terms of s 16, the applicant is
obliged to issue those certificates as that is what the law requires of him.
What the courts have done is to simply interpret what the law says in ss 13 and
16 of the Act. For as long as those sections are not set aside, the applicant
is obliged to act in accordance with them.
Furthermore, as I
have already observed earlier, there is a presumption of constitutionality as
regards any law that has not been challenged for alleged unconstitutionality.
Had the applicant approached this Court challenging the constitutionality of ss
13 and 16 of the Act, he would have been afforded the opportunity to rebut that
presumption by showing that those provisions are unconstitutional. However, the
applicant has not done so. He is simply seeking a declaration that he cannot be
directed to issue certificates nolle
prosequi and that all matters that fall under the broad concept of
prosecutorial discretion cannot be subjected to any control by anyone else. In
any case, even if he had challenged the constitutionality of ss 13 and 16, he
would still have had to comply with them pending their possible invalidation.
There is a law
which compels the issuance of certificates nolle
prosequi and that law is unchallenged and valid. There is a duty upon the
applicant to obey any order given pursuant to this law. That duty falls within
the ambit of ss 260 (1) and 261 (1) of the Constitution. The applicant's
independence is therefore subject to the rule of law and, more specifically, to
s 162 (3) of the Constitution which places a duty upon him to obey court orders
and decisions. In defiance of such clear provisions of the Constitution, which
he as a public authority is directly and explicitly bound by, he has filed this
application, more out of concern for his independence than the general
framework under which such independence exists. For all the foregoing reasons, this
application is utterly devoid of merit and must therefore fail.
CONTEMPT
OF COURT
During the hearing of this matter, the
applicant's counsel was asked whether the applicant had issued certificates nolle prosequi as ordered by the Supreme
Court and the High Court. His simple response was that he had no instructions in
that regard and he duly proceeded with argument in support of the present
application. Mr Warara, who acted for
Maramwidze in the High Court case, confirmed that the requisite certificate nolle prosequi had not been issued. The simple fact of the matter is that the
applicant has not complied with the orders in question and has proffered no
explanation whatsoever for such non-compliance. He has for some reason seen it
fit to disregard court orders; and yet he expects this Court to overlook his wanton
and cavalier nonchalance.
For the applicant to refuse to obey court
orders, and then to avoid answering the critical question as to why he has not,
is tantamount to exhibiting flagrant contempt for this Court. This type of
contempt in facie curiae cannot be
countenanced by the Court. We have a duty to protect our processes from abuse
and scandalous impunity. As was pointedly observed by Chidyausiku CJ in Associated
Newspapers of Zimbabwe (Private) Limited v The
Minister of State for Information and Publicity in the President's Office &
Others:
“The
Court will not grant relief to a litigant with dirty hands in the absence of
good cause being shown or until such defiance or contempt has been purged…. This Court is a court of law, and
as such, cannot connive at or condone the applicant's open defiance of the law.
Citizens are obliged to obey the law of the land and argue afterwards. …….. In
the absence of an explanation as to why this course was not followed, the
inference of a disdain for the law becomes inescapable.”
It is for the
foregoing reasons that we mero motu found
the applicant guilty of contempt of court, as reflected in the order that we
handed down pursuant to the hearing of this matter.
COSTS
As regards the issue of costs, it is the usual
practice that amici curiae are not
awarded costs. However, this is an extraordinary case which warrants an extraordinary
order as to costs. The manner in which the applicant has conducted himself has
left the two amici with no option but
to intervene and join in these proceedings so as to safeguard their interests.
This is so because this application is so intricately linked to the two orders
given by the High Court and the Supreme Court requiring the issuance of
certificates nolle prosequi. The
reason why the other parties are here at all is that the applicant has
stubbornly, unreasonably, inexplicably and unlawfully refused to comply with both
the law as well as extant court orders. In the event, only a punitive order as
to costs against the applicant would have sufficed. It was accordingly so
ordered.
CHIDYAUSIKU
CJ: [RETIRED]
ZIYAMBI JCC: I
agree.
GWAUNZA JCC: I
agree.
GARWE JCC: I
agree.
GOWORA JCC: I
agree.
HLATSHWAYO JCC: I agree.
MAVANGIRA JCC: I
agree.
UCHENA JCC: I
agree.
Mutamangira
& Associates, applicant's legal practitioners
Zimbabwe
Lawyers for Human Rights, 1st amicus curiae's legal practitioners
Warara & Associates, 2nd amicus curiae's legal practitioners
