Private prosecutions and the rule of law
By Alex T. Magaisa
The recent decision of the Constitutional Court of Zimbabwe, in which it held that the Prosecutor-General was in contempt of court, has brought the issue of private prosecution to public attention and scrutiny.
The Prosecutor General had been ordered by three different courts to issues certificates allowing private persons to pursue private prosecutions. He had refused to obey those court orders, choosing instead to challenge the constitutional validity of the law which required him to issue certificates for private prosecution.
The Court was not amused by his contemptuous attitude and ordered him to comply within 10 days or otherwise spend 30 days in prison. 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.
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.
What is new, however, is the Prosecutor-General’s attempt to prohibit private prosecutions. Munyaradzi Kereke, against whom a private prosecution is pending, has also approached the Constitutional Court to have the power of private prosecution banned on the grounds that it is unconstitutional.
It’s a similar application to the Prosecutor-general’s application that was thrown out by the Court, except that he is alleging that private prosecution would violate his rights. Kereke is one of the parties whom the Prosecutor General had refused to prosecute. He is accused of raping a minor in 2010 and the minor’s guardian wants to prosecute him privately. It is not intended to analyse this case which is before the Court, but instead to assess the arguments for and against private prosecutions in a general manner.
Rule of Law
The principal argument in this article is that private prosecution is a fundamental facility in supporting the rule of law.
While those opposed to private prosecution would like to give the impression that this is a new facility which, somehow, compromises the independence of prosecuting authorities, the historical reality is that private prosecutions existed long before the power of public authorities to prosecute.
In England, for example, there were no public prosecutors before the Prosecution of Offences Act, 1879. In the 18th Century, almost all prosecutions were undertaken privately. The modern Crown Prosecution Service (CPS) was established only recently, under the Prosecution of Offences Act, 1985. However, it is important to note that even in these legal systems, with a longer legal history, the power of private prosecution was retained. There are limitations to its use, but the facility exists for a reason.
Constitutional Checks and Balances
The significance of private prosecution is that it serves an important constitutional role in checking the power of prosecuting authorities. While the Constitution confers the powers of prosecution to the Prosecutor General, and protects the independence of the office, it does not imply unfettered discretion on prosecution of criminal offences.
In fact, one of the key pillars of the rule of law is that both official and judicial discretion must be narrowly construed and where used, discretion must be applied reasonably and in good faith. Thus, even eminent scholars like Joseph Raz, have included among the principles of the rule of law, the principle that discretionary powers of law enforcement agencies should not be allowed to pervert the law. It is quite possible for prosecution authorities to abuse their powers by refusing to prosecute certain offenders and this would be inconsistent with the rule of 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. However, 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 would expose them to professional embarrassment should the private prosecutions succeed after their refusal to prosecute. The existence of this possibility is an important incentive for prosecution authorities to exercise their powers reasonably and fairly.
This argument is reflected in the words of Lord Wilberforce in the English case of Gouriet v Union of Post Office Workers (1977) who wrote: “the individual … who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.
In the same case, Lord Diplock stated that the facility of private prosecution was a “useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders”
Both quotes capture the risks arising from unfettered discretion of the prosecution authorities and the importance of private prosecution as an auxiliary mechanism to limit the risks. This inertia of prosecuting authorities may be motivated by partiality, corruption, bias and favouritism. The independence of the prosecuting authorities, which the constitution guarantees, does not mean prosecuting authorities have unrestricted powers that would only escalate these risks.
Prosecutor General must act within the law
In addition, the independence of the Prosecutor General under s. 260 of the Constitution does not mean that the office and the exercise of its powers is above the law and beyond judicial scrutiny. One of the fundamental pillars of the rule of law is that executive and administrative powers must be exercised within the confines of the law, in a reasonable way, in good faith and for the purpose for which they were conferred.
The courts have a watchdog role, to ensure that powers are used properly, reasonably, in good faith and in terms of the law. The broad term for this is the power of judicial review – in that the courts have the power to review the use of powers by public authorities, which in the case of Zimbabwe, include the office of the Prosecutor-General.
For this reason, while the Constitution correctly protects the Prosecutor-General from being directed by anyone in the use of his powers, this does not place the exercise of his powers beyond the jurisdiction of the courts. The courts will not be directing him on how to exercise his powers, rather, they will merely be ensuring that his powers are exercised reasonably, in good faith and in terms of the law, as the courts are required to do in the case of all constitutional and other public authorities.
Indeed, s. 260 of the constitution which is being cited to justify the Prosecutor General’s independence also includes the requirement that, he “must exercise his or her functions impartially and without fear, favour, prejudice or bias”. Thus, his independence comes with important responsibility, which is to be fair, impartial and objective. He cannot claim independence while at the same time failing the objectivity test. Who must judge whether or not he has met the objectivity test, if not the courts of law?
Private prosecution does not dilute this independence, rather, it merely gives the Prosecutor General an incentive to ensure that he meets the objectivity test under s. 260 and that is not a bad thing at all. Regrettably, supporters of the Prosecutor General are happy to talk up his independence, but completely ignore the fact that the same s. 260 they are citing imposes an important subjectivity test on the use of his powers.
Indeed, there is nothing exceptional about judicial review of the Prosecutor General’s powers as it applies to all other constitutional bodies. The conduct of all constitutional authorities, including the President, Ministers, the Police Commissioner-General, the Speaker of Parliament, the independent commissions, like the Zimbabwe Electoral Commission is regulated by the constitution and can generally be reviewed by the courts.
S. 377 states that the Auditor-General is independent but this does not mean the exercise of her powers cannot be challenged in a court of law. This power of review is a fundamental safeguard against abuse of power. It does not compromise the independence of these offices but, in fact, ensures that they are safeguarded from external influence and that they act in accordance with the law, to which they are all subject.
Prosecution Power is not Exclusive to the Prosecutor General
Supporters of the Prosecutor General also confuse independence of the office with exclusivity of prosecution powers. This is incorrect. While the Constitution confers prosecution powers on the Prosecutor General, it also recognises that other persons may be conferred with powers to prosecute. This is what s. 263 of the Constitution states:
“An Act of Parliament may confer powers of prosecution on persons other than the National Prosecuting Authority, but those powers must not limit or conflict with the Authority’s powers under this Part”.
Thus there is nothing amiss with the Criminal Procedure and Evidence Act recognising that private persons can prosecute privately. There is no suggestion that such a power conflicts with or limits the power of the National Prosecuting Authority. In any event, the public interest in ensuring that victims/survivors get access to the courts and justice must be given due regard.
Does Private Prosecution violate fundamental rights?
There is also a view that somehow the power of private prosecution violates the fundamental rights of the accused party. This is a weak argument whose fundamental flaw is that it focuses only on the accused party and excludes the victim/survivor of the alleged crime, as if they too are not protected by the same fundamental rights.
If anything, private prosecution is a facility that is designed to promote, among other rights, access to justice for victims/survivors of criminal activities. It enables them to access the courts where the prosecution authorities might have abused their powers to decline prosecution of offenders. It is the victim who will be arguing that he or she must be given equal protection of the law, where the prosecuting authorities would have unfairly refused to prosecute and therefore, protected an offender.
Thus the contention that private prosecution violates the rights of an accused person who is being privately prosecuted has a serious boomerang effect upon the accused, since a denial of private prosecution by the prosecuting authorities can also be argued to be a violation of the victim’s right to equal protection of the law.
The task of the courts in such a case is to balance the rights of the accused and victim, and it is hard to imagine a court giving greater priority to the rights of an accused over the rights of a victim/survivor of crime. If there is to be any balance, it is by allowing the victim/survivor an opportunity to prosecute and prove his case in court, which also allows the accused to clear his name.
It might be argued that private prosecution can be a source of nuisance to accused persons where prosecution is driven by malice and is not backed by evidence. However, the legal system has safeguards to prevent abuse of private prosecutions.
Safeguards against abuse of private prosecution
Burden of Proof
The courts are there to filter out frivolous and vexatious prosecutions. After all, the burden of proof in criminal cases – proof beyond reasonable doubt – which is exceedingly high, must be discharged by the private prosecutor. The same protections that are available to an accused in a normal trial will be available to him in a private prosecution.
For example, he can apply for discharge at the close of the private prosecution’s case, and if the court is satisfied that there is insufficient evidence, the accused will be discharged. So if the accused believes that the Prosecutor General’s decision was right, this will still be proven right by an impartial court of law.
Further, the cost of private prosecution acts as a serious disincentive to private prosecutions. 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. 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 courts of law.
Again, not everyone is able to do this. In addition, the accused can recover his 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.
This is not to say those who can afford the costs would not abuse the facility. However, historically, private prosecutions are few and far between. That this issue has become topical now and that some people think it is a new power, when in fact private prosecution has always been permitted under Zimbabwean law shows how little use has been made of it in the past.
Those who have tried to use it, have done so because they have felt a fundamental sense of injustice at the refusal by the Prosecutor-General to prosecute. It is unlikely that many people will be rushing to the courts to mount private prosecutions, when in fact they have never felt the urge to do so in the past.
The Government’s recent move to ban private prosecutions through a Bill currently before Parliament owes more to paranoia than any real threats to use private prosecution.
Prosecutor’s first opportunity to review
Another check on the abuse of the facility of private prosecution is that it can only be used where the Prosecutor General has declined to prosecute and has issued a certificate to that effect. This is a filtering mechanism. The prosecuting authorities have the power and right to consider a case before any private prosecution can be mounted.
This is an important opportunity to filter cases and as long as they act reasonably, fairly and in good faith, it is unlikely victims would go the private route, except where they feel a fundamental sense of injustice. This probably explains why the judicial system has not been inundated with private prosecutions in the past, even where prosecuting authorities have declined to prosecute.
Power to take over private prosecution
An additional check on the abuse of private prosecution is that the prosecuting authorities have the power to take over a private prosecution once it has commenced. This allows them to retain residual power over prosecution. Of course, if the Prosecutor General maliciously decides to take over a prosecution in order to drop it or deliberately lose, this decision can also be challenged on review, a facility that helps to prevent abuse of the Prosecutor General’s power.
Private prosecutions have a long legal history. They pre-date the power of public authorities to prosecute. In most countries, the power to prosecute privately is retained, albeit with restrictions and qualifications to prevent abuse.
But the power of private prosecution itself serves an important constitutional role in checking and balancing the powers of the public prosecuting authorities and in protecting the rights of victims/survivors – rights of access to justice and rights to equal protection of the law, among others. These are important rights which must be protected. The Prosecutor-General is independent but his discretion is not unfettered. The existence of private prosecution is an important check on his powers.
I understand there is a Bill currently before Parliament, which seeks to ban private prosecutions. If that law is passed, it would be a big mistake and a serious infringement on the constitutional rights stated above. It would cause a serious upset in the balance of power in the constitution, giving the Prosecutor-General unlimited power and discretion over prosecution in a manner that would lead to arbitrariness.
It would violate the rule of law which requires limitation in the use of discretion. I’m surprised if it passed the constitutionality test of the Parliamentary Legal Committee, which has a constitutional mandate to scrutinise all Bills. But even if it goes through, I imagine there would be reasonable prospects of challenging the constitutional validity of the ban of private prosecutions in the Constitutional Court.
Dr Alex T. Magaisa can be reached on [email protected] This article was initially published on his website: AlexMagaisa.com