The Sunday Mail
Harmony Agere
The protracted judicial stand-off between the Prosecutor-General Mr Johannes Tomana and the Courts over the latter’s order compelling the former to issue out certificates of private prosecution to complainants whose criminal cases were declined by the National Prosecuting Authority came to a dramatic end a couple of weeks ago with the Prosecutor-General finally complying with the order.
This paved way for the private prosecution of former Telecel Zimbabwe director Jane Mutasa, Bikita West legislator Munyaradzi Kereke and Vivek Solanki for alleged embezzlement, rape and fraud respectively.
Dr Kereke has, however, successfully applied for stay of prosecution pending his constitutional challenge to the validity of the statute allowing private prosecution.
Although the Prosecutor-General complied with the order, he protested in a declaration filed in the Constitutional Court that by compelling him to act in a certain manner, the courts were overstepping their jurisdiction and in the process violating the country’s supreme law.
On the other hand, the Constitutional Court led by Chief Justice Godfrey Chidyausiku endorsed earlier judgments made by the High Court and Supreme Court compelling the Prosecutor General to issue certificates of private prosecution where public prosecution was declined.
The Zimbabwe Lawyers for Human Rights, who were appointed as the friend of the court, were also among the regiment of groups who sided with the Constitutional Court.
As the matter unfolded, it duly received overwhelming coverage in the media as the two sides moved to clarify and give reasons for their contrasting positions.
Nonetheless, although the matter was widely covered in media, the subject of private prosecution as a legal process remains a mystery that most Zimbabweans fail to comprehend. It is not a subject which you will hear being debated in kombis or bars as only those in the legal sector and a few learned people understands how it works.
According to Crown Prosecution Service, private prosecution is a prosecution started by a private individual or entity who/which is not acting on behalf of the police or other prosecuting authority.
Experts say private prosecution can take place when the office of the public prosecutor, acting on behalf of the State, deems that there is not enough evidence to build a case and declines to press ahead with it.
However, the complainant can, as in the case of Telecel Zimbabwe and Jane Mutasa, apply for a certificate of private prosecution.
In that case, a lawyer representing the complainant can press charges as if it was a civil case.
Legal expert Mr Tichaona Nyahuma said there is not much difference between a public and a private prosecution.
He said a public prosecution is done on behalf of the State by a prosecuting authority while a private prosecution is carried out by a lawyer or a legal entity representing a complainant who had his or her case declined by the office of the public prosecutor.
“Private prosecution happens when the Prosecutor-General deems that the evidence presented to him is not strong enough to build a case and then decides not to prosecute. So when a complainant feels that there is a case he or she can apply for the certificate of private prosecution,” she said.
“Through his or her private representative, who is usually a lawyer, the person can press charges. So it is almost similar with public prosecution with the only difference being that public prosecution is done by a public prosecutor for the State.
“If the Prosecutor-General had already started with the case but then feels it is not strong enough and drops it, the private prosecutor will have to start afresh.”
Mr Nyahuma said while many people think that private prosecution is a new phenomenon, it has always been there.
“The issue of private prosecution is not actually a new thing, it has always been there. lt’s only that people have not been exercising it.”
Another legal expert, Alex Magaisa, agreed that private prosecution is not a new phenomenon in Zimbabwe.
“Judging by the reaction, it is apparent that most people were not aware of the existence of the facility of private prosecution under the law. They think it is a new, revolutionary invention by the Constitutional Court,” he said.
“The reality of course, is that the facility of private prosecution has always been available under the law of Zimbabwe, as it is in many other jurisdictions.”
Magaisa said private prosecution is good since it ensures fair application of the law.
“If, therefore, prosecution authorities have unfettered discretion on prosecution, there would be a huge incentive for partiality and selective use of the law.
“Unfettered discretion increases the risk of highly subjective and arbitrary decisions. Prosecuting authorities could choose to prosecute some offenders but let others go scot-free.
“This would be an abuse of power by the prosecution authorities and if there is no alternative, it is the victims of crime who would suffer.”
He said the existence of the power of private prosecution means the prosecuting authorities know that victims can always pursue the alternative route and get access to the courts of law, even without them.
This, he said, would expose the prosecuting authorities to professional embarrassment should the private prosecutions succeed after being refused for public prosecution.
“The existence of this possibility is an important incentive for prosecution authorities to exercise their powers,” Magaisa said.
It had been anticipated that the issuing of the private prosecution certificates would open floodgates of private prosecutions but Magaisa said it is unlikely given the expertise and resources needed to carry out a private prosecution.
“It is unlikely that there will be floodgates of private prosecutions because to prosecute a criminal case requires a certain level of experience and knowledge of the legal and judicial process,” he said.
“Not everyone is capable of doing this and often professional legal assistance has to be sought. The private prosecution itself will have to be funded by the private prosecutor, rather than by the State.
“This costs money, often a huge amount of money. In any event, there would be need for private investigations to gather evidence which is admissible in the courts of law.
“Again, not everyone is able to do this. In addition, the accused can recover his or her own legal costs from the private prosecutor. The net result is that for anyone to really mount a private prosecution, it has to be serious and deserving matter which warrants such an investment in resources.”
