GUVAVA
JCC: This
is an application brought in terms of section 85(1) of the
Constitution of Zimbabwe (hereinafter called 'the Constitution').
The applicants seek an order declaring the employment of serving
members of the security services, as prosecutors, to be
unconstitutional.
The
applicants allege that the engagement of serving members of security
services as prosecutors is a breach of the right of accused persons
to protection and benefit of the law under section 56(1) of the
Constitution and their right to a fair trial under section 69(1) of
the Constitution.
The
applicants also contend that the engagement of serving members of the
security services is contrary to the provisions of section 208(4) of
the Constitution. The section prohibits the engagement of serving
members of security services in civilian institutions.
They
argue that the only exception granted in the Constitution for the
employment of serving members of the security services in civilian
institutions is during a period of public emergency.
The
applicants accordingly pray for the following relief:
“1.
The engagement by the first Respondent of members of the security
services to perform prosecution duties is a contravention of section
208(4) of the Constitution of Zimbabwe Amendment (No. 20) 2013.
2.
The engagement by the 1st
Respondent of members of the security services to perform prosecution
duties interferes with the protection granted to accused persons and
infringes on section 69 of the Constitution of Zimbabwe Amendment
(No.20) 2013.
3.
The engagement by the 1st
Respondent of members of the security services to perform duties of
public prosecutors violates the principle and spirit of sections 260
and 261 of the Constitution of Zimbabwe (No.20) 2013.
4.
The 1st
and 2nd
Respondents are directed to disengage all members of the security
services within its ranks forthwith.
5.
The 1st
and 2nd
respondents are hereby ordered to pay costs of this application
jointly and severally one paying the other to be absolved.”
Background
Facts
In
the application, the applicants allege in the main that the rights of
accused persons to a fair trial are infringed by the engagement of
police prosecutors. They make the contention in the final analysis,
that in any event, the engagement of serving members of the security
services as prosecutors is in contravention of section 208(4) of the
Constitution.
The
first applicant is Zimbabwe Law Officers Association, an
unincorporated voluntary organization, governed by its constitution
(hereinafter referred to as the Association). The Association
represents the interests of public prosecutors in Zimbabwe. The
Association is represented in the application by its Secretary
General, Derek Charamba, who is a Public Prosecutor. He is also the
second applicant.
The
first respondent is the National Prosecuting Authority (the NPA)
established in terms of section 258 of the Constitution. It is the
body tasked with instituting and undertaking criminal prosecutions on
behalf of the State and discharging any functions necessary or
incidental to such prosecutions.
The
second respondent is the Prosecutor General who is the head of
the
first respondent. He is cited in his official capacity.
The
third respondent is the Minister of Justice, Legal and Parliamentary
Affairs. He is also cited in his official capacity.
The
fourth respondent is the Commissioner General of the Zimbabwe
Republic Police, cited in his official capacity, as the head of the
police force.
The
third, fourth and fifth respondents did not oppose the application.
The
first and second respondents do not dispute that
a
number of serving members of the security services are employed as
prosecutors by the first respondent.
At
the time of the hearing of the application, not less than 100 serving
members of the security forces were employed as prosecutors
throughout the country. Statistics given in the applicants founding
affidavit state that there are 27 in Harare, 23 in the Midlands
Province, 29 in Bulawayo and Matebeleland North Province, 12 in
Mashonaland East Province, 11 in Manicaland Province, 11 in Masvingo
Province, 10 in Mashonaland Central Province, 8 in Mashonaland West
Province and 6 in Matebeleland South Province.
Section
85(1) of the Constitution in terms of which the applicants brought
this application provides as follows:
“85
Enforcement of fundamental human rights and freedoms
Any
of the following persons, namely:
(a)
any person acting in their own interests;
(b)
any person acting on behalf of another person who cannot act for
themselves;
(c)
any person acting as a member, or in the interests, of a group or
class of persons;
(d)
any person acting in the public interest;
(e)
any association acting in the interests of its members;
is
entitled to approach a court
alleging
that a fundamental right or freedom enshrined in this Chapter has
been, is being or is likely to be infringed, and the court may grant
appropriate relief, including a declaration of rights and an award of
compensation.”
Although
counsel for the respondents had raised as a point in
limine
that the applicants were not properly before the Court, they conceded
that the matter is of public importance calling for resolution on the
merits.
I
agree with this approach.
In
this respect I find comfort in Herkpoort
Environmental Preservation Society & Another v Minister of Land
Affairs
1998 (1) SA 349 (CC) where the Constitutional Court of South Africa
held that there may be cases where the circumstances are so
exceptional and in the public interest, or good governance, or are of
such overriding importance that the Court may decide not to be
detained by procedural irregularities and grant access to the
parties.
Although
the court in the Herkpoort
Environmental Preservation Society's case supra
was dealing with a question of disputes of facts, I am of the view
that the basic principle is applicable to the facts of this case.
A
similar approach was adopted in the Kenyan case of
Westmond
Power (K) Ltd v Commissioner of Income Tax Nairobi (Nairobi Civil
Appeal No. 28/06).
I
have also taken into account the fact that there would be no
prejudice as both parties were in agreement that the matter of the
alleged unconstitutionality of the engagement of serving members of
security forces as prosecutors should be determined on the merits.
The
issue was argued fully before the Court.
The
Applicants Case
The
applicants argue that a high degree of impartiality and professional
independence is required of public prosecutors. They allege that the
training that members of the Defence Forces, Police Service and
Prisons and Correctional Services undergo is different from that
given to civilian prosecutors in that the training causes them to
maintain a distinct culture and discipline not primarily predicated
on impartiality and independence.
It
was argued that members of security services are trained to take
orders from superiors which they must execute without question as
questioning is regarded as insubordination. It was further alleged
that as a consequence of undergoing and receiving this type of
training, serving members of security services are unable to attain
the high degree of impartiality and independence required of a public
prosecutor.
The
applicants proceeded to argue that whilst the culture of obedience
and subordination in the security services is necessary for the
efficient administration of the security sector, it is of no
significance to the functions of a public prosecutor whose most
important attributes should be professional independence and
impartiality.
It
was thus contended on this basis that the appointment as prosecutors
of serving members of the security services, impedes the due
administration of justice.
The
applicants thus submit that the employment of serving members of
security services as prosecutors is a threat to the right of accused
persons to a fair trial as the independence of the officers is not
guaranteed.
To
buttress their argument, the applicants attached two annexures to
their founding affidavit. Annexure “DC2” is a summary
jurisdiction and state outline of a case against a “police
prosecutor”. The police prosecutor was charged with criminal abuse
of duty as a public officer under section 175(1)(a) of the Criminal
Law (Codification and Reform) Act
[Chapter
9:23].
He was said to have demanded and received ZAR900 to withdraw the
charges against the accused person.
In
the second annexure, one Bruce Muparuri deposes to an affidavit
challenging the validity of his prosecution by a law student who had
been granted prosecutorial authority. The student had been under the
tutorship of a police prosecutor. Mr Muparuri argued that the student
was not a member of the first respondent and that the prosecutor was
a serving member of the Zimbabwe Republic Police.
The
contents of these documents were used by the applicants to illustrate
the point that the engagement of serving members of the security
services poses a threat to the right of accused persons to a fair
trial.
The
applicants further alleged that in any event the employment of
serving member of the security services as prosecutors was contrary
to section 208(4) of the Constitution.
The
Respondents Case
The
first and second respondents opposed the application. They submit in
the main that the applicants have not shown how the employment of
serving members of the security services is an infringement of their
rights under ss 56(1) and 69(1) of the Constitution. They allege that
as public prosecutors the applicants cannot represent the interests
of accused persons.
They
also submit that the provisions of section 208(4) of the Constitution
do not apply to the first respondent as it is an institution that is
sui
generis.
They
argue that it cannot be categorized as being strictly civilian and is
thus not prohibited from engaging serving security officers in terms
of section 208(4) of the Constitution.
They
therefore pray that the application must be dismissed.
The
Issue Before the Court
It
seems to me that, even though the applicants had made a two pronged
argument before the court and argued that their fundamental rights
had been infringed, I am of the view that for the purpose of
disposing of the application it is not necessary to delve into the
question of whether or not the applicant's rights have been
violated.
I
take this view as it is apparent from the facts of this case that the
applicants have not shown that their fundamental rights have been
infringed.
The
first applicant does not represent rights of accused persons as it is
an association to protect the interests of prosecutors. The second
applicant is a public prosecutor not an accused person. He does not
have the mandate to represent accused persons.
In
my view however, the crux of the matter is whether or not the
employment of serving members of the security services as public
prosecutors violates section 208(4) of the Constitution.
I
will thus proceed to deal with the matter on this limited basis.
Whether
the employment of serving members of the security services as
prosecutors violates section 208(4) of the Constitution
Section
208(4) of the Constitution provides:
“(4)
Serving members of the security services must not be employed or
engaged in civilian institutions except in periods of public
emergency.”
The
applicants have alleged that the employment of members of the
security services is contrary to the above provision. The respondents
have argued that they are not acting in contravention of the
Constitution as the office of the Prosecutor General is sui
generis
and therefore does not fall under the above prohibition.
In
order to determine the issue it is necessary to examine the following
provisions.
Security
services are defined in section 207 of the Constitution as:
“207
Security Services
(1)
the security services of Zimbabwe consist of -
(a)
the Defence Forces;
(b)
the Police Service;
(c)
the intelligence services;
(d)
the Prisons and Correctional Service; and
(e)
any other security service established by Act of Parliament.”
The
Respondents seek to rely on the exclusion of the second respondent
from the Civil Service in section 259(2) of the Constitution which
provides:
“259
Prosecutor General and other officers
(1)…
(2)
The office of the Prosecutor General is a public office but does not
form part of the Civil Service.”
The
Constitution does not define a “civilian institution” but it
provides a starting point as it defines the 'Civil Service' in
section 199 which reads as follows:
“199
Civil Service
(1)
There is a single Civil Service, which is responsible for the
administration of Zimbabwe.
(2)
The Civil Service consists of persons employed by the State other
than —
(a)
Members of the security services and any other security service that
may be established;
(b)
Judges, magistrates and persons presiding over courts established by
an Act of Parliament;
(c)
Members of Commissions established by this Constitution;
(d)
The staff of Parliament; and
(e)
Any other person whose office or post is stated, by this Constitution
or an Act of Parliament, not to form part of the Civil Service.”
The
“Civil Service” is defined by the Dictionary of Legal Words and
Phrases
as
that branch of the public service that is not the military or the
navy.
Wharton's
Law Lexicon Third Edition
defines
the Civil Service as a term properly used to include all services
under the Crown except the naval, military and air services.
Section
199(2)(a) of the Constitution is a proper exclusion of the security
service from the Civil Service flowing from the definitions given
above. However, the rest of the exceptions in section 199(2) are an
exclusion created by the Constitution itself which do not necessarily
follow the ordinary definition of the “Civil Service.”
Thus
going by the above, it is clear that the term 'Civil Service' as
used in the Constitution, is tailored for the purposes of this
country and is not a definition to go by as a synonym of 'civilian'.
It
is therefore important to define the word 'civilian'.
The
applicants relied on the Oxford Concise English Dictionary 11th
Edition which defines 'civilian' as a noun describing a person
not in the armed services or the police force.
To
buttress their case, the applicants have cited a number of cases that
may assist in reaching a conclusion on the definition of the word
'civilian'.
In
the case of Minister
of Finance v Bacher Aron and Company (Rhodesia) Limited
1956
(1) SA 63 (SR)
and
S
v X
1974
(1) SA 344 (RA)
there
is discussion of a person changing from his regalia in the latter
case and from army clothes into civilian clothes in the former case.
In
the case of S
v Mavunga
1982
(1) ZLR 63 (SC)
the
court discussed civilian clothes specifically with reference to
ordinary clothes.
In
the case of Commercial
Union Fire, Marine and General Insurance Company Limited v Fawcett
Security Organisation Bulawayo (Private) Limited
1985
(2) ZLR 31 (SC)
the
court identified a man who was not in the army as a civilian.
The
Constitution does not define the term 'civilian'.
Michael
Barnett and Raymond Duvall, in 'Power in Global Governance'
grapple with the definition of 'a civilian' and do concede on
page 257 that the term can be used to refer to an 'unmilitary man
or official'.
It
is therefore necessary to examine how other dictionaries define the
word 'civilian'.
The
Cambridge Dictionary
defines
'civilian' as relating to a person who is not a member of the
police, the armed forces or a fire department.
The
Longman Dictionary of Contemporary English
defines
the same word as being anyone who is not a member of the military
forces or the police.
The
Merriam-Webster Dictionary
defines
a civilian as a person who is not a member of the military or police
or fire-fighting force.
Black's
Law Dictionary
describes
a civilian to be of a private citizen as distinguished from such as
belonging to the army and navy or in England the church.
Webster's
1913 Dictionary
defines
a civilian as one whose pursuits are those of civil life, not
military or clerical.
What
can be gleaned from these definitions by the various dictionaries is
that a person who is not in the army, navy, cleric or police force is
a civilian.
Clearly
the ordinary dictionary meaning is what was intended by the
Legislature as it did not define the term in the Constitution. The
word 'civilian' is an English word which the Constitution has not
defined but used.
The
Prosecutor General defined in section 159(1) is the head of the NPA.
He is not in the army, navy, police force or clergy.
It
follows therefore that the NPA is a civilian institution and the
Prosecutor General who heads it, is a civilian as he or she is not a
member of the security service.
Of
primary importance is the supremacy of the Constitution in this case.
Section 2 provides:
“2.
Supremacy of Constitution
(1)
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.”
The
applicants are alleging that the conduct of the first respondent in
employing serving members of the security services is
unconstitutional as the Constitution itself prohibits such conduct in
section 208(4).
From
the foregoing, it can be seen that the 'Civil Service' properly
defined excludes the military, navy and air service. The Civil
Service in Zimbabwe is defined differently by the Constitution. The
failure by the Constitution to define the word “civilian” leads
to the conclusion that the ordinary grammatical meaning of the word
is intended.
The
ordinary meaning shows that the first respondent is a civilian
institution. Thus the security services and the prosecution
department must be kept separate and distinct, except during times of
public emergency.
DISPOSITION
Having
come to the conclusion that serving members of the security service
cannot be employed in civilian institutions one cannot escape the
conclusion that the Constitution prohibits the conduct that the
applicants have complained of.
In
casu,
the principles of constitutionalism and constitutional supremacy must
prevail.
Clearly
the conduct of engaging serving members of the security services in
civilian institutions is inconsistent with section 208(4) of the
Constitution. The President has not declared a public emergency and
until that happens, the employment of such officers in a civilian
institution such as the first respondent is unconstitutional.
Although
the applicants have sought an order that serving members of the
security service must be withdrawn forthwith, such an order would
inevitably lead to chaos.
In
several areas of the country, especially the more remote parts, these
are the officers who prosecute cases. In the event that they are
removed without giving the Prosecutor General an opportunity to
recruit and replace them some areas will find themselves with no one
to prosecute cases in court. That will lead to further injustice.
It
seems to me that it is appropriate for the order of invalidity to be
amended to give the Prosecutor General sufficient time to replace the
serving members of the security services engaged by the NPA as public
prosecutors.
Section
175(6)(b) allows the Court to grant “appropriate relief” in any
case that has been placed before it and to suspend the condition of
invalidity for any period to allow the competent authority to correct
the defect.
In
respect to costs the proper order is that each party should pay its
own costs.
In
the result I make the following order.
It
is declared that:
1.
The engagement by the first respondent of serving members of the
security services to perform prosecutorial duties is in contravention
of section 208(4) of Constitution of Zimbabwe Amendment (No. 20)
2013;
2.
It is hereby ordered as follows:
(i)
The first and second respondents are directed to disengage all
serving members of the security services within its employment within
twenty four (24) months from the date of this order.
(ii)
Each party is to pay its own costs.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
ZIYAMBI
JCC: I
agree
GWAUNZA
JCC: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
MAVANGIRA
AJCC: I
agree
Mupanga
Bhatasara Attorneys,
applicants
legal practitioners
National
Prosecuting Authority,
respondents
legal practitioners
1.
Compiled by CT Glaasen, Durban Butterworths 1975
2.
A.S. Oppe of the Inner Temple, Barrister-at-law, London Law Publisher
3.
Free Online Legal Dictionary 2nd
Edition
