‘Security forces free to prosecute’

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Daniel Nemukuyu Senior Reporter—
The Constitution does not classify the National Prosecuting Authority as a “civilian office” and there is nothing wrong with employing security forces to prosecute, the Prosecutor-General’s Office has said. Responding to a constitutional application by the Zimbabwe Law Officers’ Association (ZILOA) which was challenging the use of police, army and prison prosecutors in the courts of law, director of public prosecution Mr Nelson Mutsonziwa urged the highest court in the land to throw out the case for lack merit.

ZILOA argues that the use of the security forces in courts breached Section 208 (4) of the Constitution of Zimbabwe and must be stopped.
The said section, according to ZILOA, bars security forces from participating from civilian duties like prosecution.

This comes at a time when 137 security forces were representing the PG in all the provinces countrywide to boost staff of the NPA.
In the response filed by the PG and the NPA last week, Mr Mutsonziwa said the use of security forces was not in breach of the Constitution.
“The first respondent (NPA) has not been classified as a civilian institution by the new Constitution of Zimbabwe.

“As such, the employment of security forces within the organisation of the first respondent is not ‘in spite’ of the provisions of Section 208 (4) of the Constitution,” said Mr Mutsonziwa.

He said when the security forces are attached to the NPA, they do not report or take instructions from their security bosses.
“When members of the security forces serve under first respondent (NPA) by virtue of the authority given to them by the second respondent (PG), they are answerable only to the second respondent and not to any other authority.

“When police prosecutors carry out their prosecution duties, they exercise prosecutorial discretion quite apart from their duties as police officers,” he said.

Mr Mutsonziwa said Mr Dereck Charamba, who is the second applicant in the matter, was no longer secretary-general of ZILOA and had since been fired from the NPA, hence he did not have any legal standing to institute the proceedings.

“Second applicant (Mr Charamba) lacks the necessary locus standi to bring this constitutional application which should be dismissed with costs on a legal practitioner and client scale.

“By virtue of the termination of his employment on April 18, 2013, he cannot purport to represent first applicant in that capacity and further the first applicant’s interests,” said Mr Mutsonziwa.

The NPA said under Section 259 of the Constitution, the Prosecutor-General and other officers of the National Prosecuting Authority are a public office, but do not form part of the civil service.

ZILOA is seeking an order forcing the NPA and the Prosecutor-General to disengage all members of the security services within its ranks, arguing that the independence and impartiality of the officers was not guaranteed.

ZILOA listed the NPA, Mr Tomana, Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa and Police Commissioner-General Augustine Chihuri as respondents.

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