Senior Court Reporter
THE failure by law officer, Tapiwa Kasema, to consult his superiors before consenting to granting of bail to armed robbers at the High Court was calculated to show favour to the suspects, which amounts to criminal abuse of duty, the State has said.
The State also said Kasema’s actions also undermined the Prosecutor General and the police’s roles in opposing bail and accounting for criminals.
Mr Silent Shoko, prosecuting, said this when responding to Kasema’s application for exception to the criminal abuse of duty charges stemming from his consent granting of bail to Musa Taj Abdul.
“The State submits that in this case the accused in the exercise of his duties omitted to seek authority to consent to bail from his superiors, in this case any Chief Law Officer, as laid down in the standard operation procedures which limit his discretion on whether or not to consent bail in cases involving armed robbery.
“That omission in terms of law is presumed to be calculated at showing favour to the accused person who were seeking bail.
“His actions amounts to criminal abuse of duty as the omission prejudiced the Prosecutor General and the Commissioner General of Police’s roles in particular their interest and rights in opposing bail and accounting for criminals respectively,” he said.
Mr Shoko also said Kasema failed to follow processes laid down by the PG in terms of the law which gives him power to make subsidiary law for the proper administration of his functions as a prosecutor.
Kasema, through lawyer Mr Admire Rubaya, in his application said: “The accused assets that the charge of criminal abuse of duty as a public officer under the circumstances in which there has been an extant order of court granting applicants bail in which Prosecutor General has failed to upset those extant court orders in an abuse of authority on the part of Prosecutor General and those involved in making the decision.
“It also sends a chilling effect on this court because all judgments that the PG and the powers that be will disagree with will then become the subject of criminal prosecutions against judges of the superior courts, magistrates of this court, the prosecutors who appear before them an legal practitioners who defend clients.
“What is, however, clear is that these criminal proceedings are in effect meant to review the conduct of criminal bail proceedings before the High Court and or conduct of the accused as an officer of court in the course of executing his duties as a prosecutor.
“The State wants the court to make a finding that those proceedings were a farce because they were based upon a consent to bail proffered by the accused without following an internal memo written by one Michael Mugabe.
“Taken at its highest a violation of an internal memo would result in disciplinary proceedings not criminal prosecution.
“The Prosecutor General and other senior officers in the NPA ought to be reminded that their internal memos remain internal, they are not the law and that fact that they have prosecutorial powers does not give them unfettered power to prosecute their subordinates for not following their internal instruction through criminal justice system.”
The court is expected to make a ruling on July 21.