By Mashudu Netsianda
The Prosecutor-General (PG) Advocate Ray Goba has ordered prosecutors to immediately stop complainants from withdrawing matters before the court through affidavits saying the practice had no legal grounding.
In a circular addressed to all prosecutors, Adv Goba said the scrapping of withdrawal affidavits is in line with the adoption of the country’s new prosecutorial guidelines.
“This practice of permitting complainants to depose affidavits purporting to be the basis for the State to withdraw charges against an accused person whose matter is pending trial or completion of trial has no legal foundation or support. Accordingly, pending the adoption of new prosecutorial guidelines, the practice of accepting and relying on withdrawal affidavits in prosecutorial decision making must cease,” said Adv Goba.
He said National Prosecuting Authority (NPA) officials should comply with the new requirement.
“All officers of the NPA are directed that they must with immediate effect cease all reliance on such affidavits in making decisions regarding prosecution of criminal offenders,” said Adv Goba.
“The instruction shall be brought to the attention of the Commissioner-General of the Zimbabwe Republic Police, the Zimbabwe Anti-Corruption Commission.”
Adv Goba said although the new regulation was likely to force some witnesses to be hostile towards the State by changing attitudes or refusing to testify against accused persons, the law of criminal procedure and evidence has adequate remedies to deal with those issues.
“Similarly the law has a provisions to address the concerns of vulnerable witnesses and to protect their identities and publicity in certain situations,” said Adv Goba.
Complainants who withdraw matters before the courts mostly involve domestic violence and rape related cases.
Adv Goba said by acceding to the complainants’ wish to withdraw the matter before the courts was tantamount to violating some of the complainant’s fundamental rights and freedoms guaranteed by the constitution.
He said withdrawal affidavits were not provided for in any statute or rule of court.
“It is a practice that appears to have developed initially as a measure to assess the bona fides of complainants who for one reason or another wished to have a charge against an accused person withdrawn and to ensure that once withdrawn there would be no comeback by complainants for the same matter,” he said.
Adv Goba said the practice was amenable to abuse and corrupt usage.
“It can even be abused for extortion. Complainants need to be informed that once they file a complaint of conduct that is criminal in nature with the police, NPA assumes full responsibility for the matter and the complainant becomes a witness for the State in the criminal investigation and subsequent trial proceedings,” said the PG. The Chronicle
