The independence of the prosecutorial authority : a comparative study of Zimbabwe, South Africa, and Namibia

Abstract

In 2014 in the case of Telecel Zimbabwe(Private) Limited v Attorney-General of Zimbabwe1 the Prosecutor-General of Zimbabwe2 challenged the issuing of private prosecution certificates to private parties on the basis that they were unlawful and grossly irrational.3 The Prosecutor-General argued that private prosecutions would interfere with the authority and independence of the Prosecutor-General to prosecute criminal matters on behalf of the state.4 However, the establishment of an independent prosecuting authority is an important or special feature of the Zimbabwean Constitution.5 The importance of the Independence of the prosecution authority is that it has the effect of promoting the separation of powers – a very important doctrine in a democratic state as it promotes accountability. In the Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Republic of South Africa, 1996,6 the Constitutional Court held that there was no fixed or rigid doctrine of separation of powers. The court held that what was important was the separation of powers created by the constitutional text. The doctrine is to be found in the structure and functions of the different organs of state and their respective interdependence or dependence. The separation serves to prevent too much power vesting in one institution and so promotes the rule of law.7 The court in the Telecel case held that private prosecutions do not interfere with the authority and independence of the Prosecutor-General as sufficient checks were provided in legislation.8 Following this judgment, Zimbabwe saw its first successful private prosecution case when legislator, Munyaradzi Kereke, was convicted on rape charges.9 However, this did not put to rest the debate on the independence of the prosecuting authority and the Prosecutor-General. The debate on independence in prosecution does not centre on private prosecutions only, but goes further to cover the appointment of the Prosecutor-General, a quasi-judicial-political process in Zimbabwe.10 This, together with private prosecutions, has raised a number of questions as to the independence of the prosecuting authority. This debate is not limited to Zimbabwe but has also been raging in South Africa and Namibia. Zimbabwe and these jurisdictions share the same legal heritage rooted in Roman-Dutch and common-law principles. Apart from their shared legal history, these jurisdictions also share a political and cultural heritage . Then again, the approach to the challenges that surround independence in prosecution might differ due to the different approaches in these jurisdictions in their attempts to resolve existing challenges. As a result, there is a need for a comparative study of Zimbabwe, Namibia, and South Africa directed specifically at discussing and analysing the legal position concerning the independence of the prosecutorial authority.