[Bill-Watch] Constitution Watch 4/2014 of 9th June [National Prosecuting Authority]

[Veritas Bill Watch]

CONSTITUTION WATCH 4/2014
[9th June 2014]
The New National Prosecuting Authority Set Up by the Constitution
&
Its Enabling Act - The National Prosecuting Authority Bill 
Introduction
The Constitution  Section 258 of the Constitution establishes a National
Prosecuting Authority [NPA] which is responsible for prosecuting criminal
cases on behalf of the State.  The NPA is headed by a Prosecutor-General who
is appointed by the President on the advice of the Judicial Service
Commission following the same public selection process as is applicable to
judges.  [The present incumbent, Mr Johannes Tomana, did not go through this
process, however;  he automatically became Prosecutor-General by virtue of
paragraph 19 of the Sixth Schedule to the Constitution.]
The Constitution deals with several matters relating to the
Prosecutor-General and the NPA, and leaves the rest to be covered by an Act
of Parliament.  The main points dealt with in the Constitution are:
.      The Prosecutor-General must be independent of political direction and
control [section 260].
.      The Prosecutor-General is appointed for a six-year term, renewable
once [section 259(7)].
.      Officers of the NPA, including the Prosecutor-General:
o   must exercise their functions impartially and in a non-partisan manner
[sections 260 and 261(2)];
o   must act in accordance with the Constitution and the law [section
261(1)] [This, incidentally, means that their decisions can be reviewed by
the High Court].
.      The Prosecutor-General must publish the general principles by which
he decides whether and how to institute and conduct criminal proceedings
[section 260(2)].
.      The Prosecutor-General must report annually to Parliament on the
activities of the NPA [section 262].
Enabling Act essential  Everything else about the NPA - its structure and
organisation and the appointment and conditions of service of its officers -
is left to be covered by an Act of Parliament.  The effect of the
Constitution, therefore, was to create the NPA as an institution with no
real existence:  it had only one member, the Prosecutor-General, no staff
and no way of exercising its constitutional functions.  To enable it to do
so, there has had to be an enabling Act of Parliament.
On 7th February the government published the National Prosecuting Authority
Bill, which is intended to give the NPA functional capacity.  The Bill has
had a leisurely passage through Parliament, being finally passed in the last
week of May.  It must now go to the President for his assent before being
gazetted as an Act.
Outline of the National Prosecuting Authority Bill
The Bill starts by making the NPA a corporate body [clause 3].  This is
important, because it will enable the NPA to have its own property, such as
premises and equipment, independently of the government.
Board and staff of the NPA
Clause 5 of the Bill goes on to establish a nine-member Board to run the
NPA.  It will be chaired by the Prosecutor-General and, apart from him, will
consist of:
.      the National Director of Public Prosecutions [the
Prosecutor-General's deputy, appointed by the Board "in consultation with" -
which may mean with the concurrence of - the Minister of Justice];
.      the Director of Administration [the chief administrative officer of
the NPA, again appointed in consultation with the Minister];
.      an ex-judge or a person qualified to be a judge, appointed by the
Minister of Justice after consultation with the Judicial Service Commission
[a sitting judge could not be appointed to the board because the appointment
would be incompatible with his or her judicial independence];
.      a member of the Civil Service Commission;
.      a representative of the Ministry of Finance, appointed by the
Minister of Justice;  and
.      three other members appointed by the Minister, with expertise in
human resources management, accountancy and law.
At least five of the nine members will have to be women.
The Board will be responsible for administering and supervising the NPA, and
appointing and disciplining its prosecutors and other staff members [It will
not however be able to control the prosecutorial discretion of the
Prosecutor-General since his independence is guaranteed by section 260 of
the Constitution].  In exercising its responsibilities the Board will be
subject to general policy directives issued by the Minister of Justice
[clause 14].
The Board will appoint the professional staff of the NPA, i.e. the
prosecutors, apparently without reference to the Minister, but the
administrative staff will be appointed by the Board in consultation with
[i.e. with the approval of] the Minister.  The Board will also be able to
engage non-permanent staff under contract, apparently without the Minister's
approval [clause 17].  In addition, the Prosecutor-General will have power
under clause 27 to engage persons to perform unspecified services for the
NPA.  Professional staff will have to be qualified to practise law [clause 9
of the Bill], so they will need to be registered as legal practitioners.
The Board will be enjoined to delegate its functions so far as practicable
[clause 7] and to establish offices at provincial, district and other local
levels [clause 10].
The Board will have to submit annual reports to the Minister [their
subject-matter is not stated] and the Minister will lay them before
Parliament [clause 11].
Functions of staff
Clause 12 states that the Prosecutor-General conducts prosecutions on behalf
of the State, and can stop prosecutions and issue certificates allowing
private persons to institute prosecutions in terms of the Criminal Procedure
and Evidence Act [Chapter 9:07].  The Prosecutor-General may assign any of
these functions to the National Director of Public Prosecutions and may
authorise any other member of the NPA to exercise them.  The form of the
authority is, rather oddly, set out in the Bill itself:  the Bill's drafters
apparently did not trust the Prosecutor-General to work out for himself how
to word his authorities.
Under clause 13 the Prosecutor-General will have six months within which to
formulate and publish the general principles by which he decides whether and
how to institute and conduct criminal proceedings.  This publication is
required by section 260(2) of the Constitution.
Conditions of service of staff
The Board will be responsible for fixing the conditions of service of the
NPA's staff, and will have to get the concurrence of the Minister of Finance
for any conditions that increase expenditure from the Consolidated Revenue
Fund [clause 19].  Staff members will be allowed to form associations to
negotiate with the Board on service conditions [clause 20].
The Board will be responsible for disciplining members of the NPA's staff,
and will appoint disciplinary committees to investigate cases of misconduct
[the grounds of misconduct are not specified in the Bill] [clause 22].
Members aggrieved by the Board's decision in disciplinary cases will have a
right of appeal to the Labour Court [clause 23].
The Board, with the concurrence of the Minister, will have power to make
regulations under clause 30 providing for the conditions of service of staff
members of the NPA.
Administration of NPA
The Bill establishes an administrative division of the NPA consisting of
staff appointed by the Board in consultation with the Minister.  The
division will be headed by a director who will report to the Permanent
Secretary for Justice - and presumably also to the Board of the NPA [clause
15].
Finances of NPA
The NPA will be funded from the Consolidated Revenue Fund, i.e. by the
Government, though the Board will be entitled to accept donations from other
sources, including foreign governments, in consultation with the Minister
[clause 24].  Under section 305(3) of the Constitution, the NPA will have a
separate Vote in the annual budget, so its funds will not be channelled
through the Ministry.
Comments on the Bill
Generally the Bill will achieve what is required of it under the
Constitution, namely to establish the organisational structure of the NPA,
in particular the Board which will be responsible for dealing with its staff
and administration.
There are, however, several criticisms that can be made:
1.   Ministerial control  The extent of the Minister's control over the NPA
is not altogether clear.  In some cases the Board must do things "in
consultation with" the Minister [e.g. the appointment of the National DPP
under clause 8(2) and the appointment of administrative staff under clause
15] and in other cases "with the concurrence of" the Minister [e.g. the
fixing of service conditions under clause 19(1) and the making of service
regulations under clause 30].  In yet other cases things must be done "after
consultation with" another person or authority [e.g. clauses 5(1) and 20].
A court may have difficulty working out how much control these phrases give
to the Minister or authority concerned.
It should be pointed out, however, that the Minister's power to appoint most
members of the Board may not detract significantly from the NPA's
independence because the Board is responsible for administering the NPA and
does not control its prosecutorial functions.
2.   Professional staff  Under clause 9 of the Bill, all the professional
staff of the NPA must be registered legal practitioners.  The Board may find
it difficult to attract enough qualified people to man all the NPA's
prosecuting stations.
3.   Top-heavy?  While it may be difficult for the NPA to find enough
ordinary staff members, it will have rather a lot of "chefs":  not only a
Prosecutor-General but also a National Director of Public Prosecutions and a
Deputy to the National Director.
4.   Responsibility for reports  Clause 11 of the Bill requires the Board to
submit annual reports to the Minister, whereas section 262 of the
Constitution makes the Prosecutor-General responsible for preparing the
reports.
5.   Representativeness  There is no provision for the members of the NPA to
be representative of Zimbabwe's diverse communities, which is a must in
terms of section 194(1)(j) of the Constitution.
Urgency of Bill
The Bill was published on 7th February and, as already noted, its progress
through Parliament since then has been leisurely.  This lack of haste is a
pity, because the Bill is very urgent.  As pointed out earlier, the
Constitution established the NPA and declared that the former
Attorney-General, Mr Tomana, would become the first Prosecutor-General, but
the Constitution left all the other staff of the NPA to be appointed by the
Board which will be established under the Bill.  So we have an NPA
consisting of the Prosecutor-General and no one else.  None of the former
members of the Criminal Division of the Attorney-General's Office have been
appointed to the NPA because there is as yet no Board to appoint them.
Hence only the Prosecutor-General can conduct prosecutions on behalf of the
State because he is the only member of the NPA.  Prosecutions conducted on
behalf of the State by anyone else are open to challenge on the ground that
the prosecutors had no title to prosecute.
If ever there was a Bill that needed to be fast-tracked through Parliament,
this was it.  It is to be hoped that the Bill will receive presidential
assent and be gazetted as soon as possible so that the NPA Board and staff
members can be appointed to make the NPA fully functional.
 
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