BILL WATCH 40/2020

[27th June 2020]

The National Prosecuting Authority Amendment Bill

Introduction

In December last year the National Prosecuting Authority Amendment Bill was published in the Gazette, and it is now undergoing its second reading in the National Assembly.  The Bill proposes to amend the National Prosecuting Authority Act to improve the governance structure of the National Prosecuting Authority [the NPA].  The Bill can be accessed on the Veritas website [link], as can the NPA Act [link].

Background to the Bill

The Constitution

The NPA is established by section 258 of the Constitution as the body “responsible for instituting and undertaking criminal prosecutions on behalf of the State …”.  In terms of section 259 of the Constitution the NPA is headed by the Prosecutor-General and must have a board, appointed under an Act of Parliament, to employ prosecutors and other officers to assist the Prosecutor-General in exercising his or her functions.

Because the NPA is responsible for law enforcement and upholding the rule of law, the Prosecutor-General and all his prosecutors must be independent and exercise their functions impartially.  This is emphasised in no fewer than three sections of the Constitution:

• section 259(10)(c), which says:  “An Act of Parliament must provide … that in exercising their functions, those persons [i.e. members of the NPA] must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General.”
• section 260(1), which says:  “Subject to this Constitution, the Prosecutor-General … is independent and is not subject to the direction or control of anyone, and … must exercise his or her functions impartially and without fear, favour, prejudice or bias.”
• section 261(2), which says:  “No officer of the National Prosecuting Authority may, in the exercise of his or her functions, … act in a partisan manner [or] … further the interests of any political party or cause.”

Although the three sections do not in terms apply to members of the NPA Board, those members too must be independent and impartial, because if they are not how can they be trusted to appoint independent and impartial prosecutors?

The National Prosecuting Authority Act [the NPA Act]

The NPA Act establishes the Board of the NPA and sets out its functions, one of which is to appoint prosecutors and a National Director of Public Prosecutions to supervise them.  Another important function of the Board is to make regulations providing for conditions of service of prosecutors and other members of the NPA.  The Act also establishes a Department of Administration under the control of a Director to deal with the administrative work of the NPA.

We shall explain the relevant provisions of the Act in more detail as we outline the amendments that the Bill proposes to make to it.

Outline of the Bill

The Bill mainly focuses on restructuring the NPA Board and introducing new posts within the NPA.

Restructuring the NPA Board

At present the NPA Board consists of:

• the Prosecutor-General, who is the chairperson
• the Deputy Prosecutor-General, who is the deputy chairperson [currently there is only one Deputy PG but the Bill will allow more than one to be appointed ‒ see below]
• The Director of Administration of the NPA
• a judge or former judge appointed by the Minister after consultation with the Judicial Service Commission
• a member of the Civil Service Commission appointed by the chairperson of that Commission, and
• four other members appointed by the Minister of Justice.

The Bill proposes to change this as follows:

• The Prosecutor-General and Deputy Prosecutor-General will no longer be chairperson and deputy chairperson.  Instead the President will appoint two of the other members to be chairperson and deputy chairperson respectively.  Deputy Prosecutors-General will no longer be members of the Board in their own right but will only deputise for the Prosecutor-General on a rotational basis.
• There will be one extra Board member, a civil servant in the Ministry of Justice appointed by the Minister.
• Of the other members appointed by the Minister of Justice, one will be a civil servant nominated by the Minister of Finance, another will be a professional accountant or auditor nominated, again, by the Minister of Finance, while a third will be a lawyer nominated by the Law Society of Zimbabwe.
• The Secretary to the NPA [currently the Director of Administration] will be the Board’s secretary.

Comment

The Bill will give the Government more control over who is appointed to the NPA board, firstly because the President will be able to choose the chairperson and deputy chairperson, and secondly because the Minister of Justice will be able to appoint one of his civil servants to the board.

As against that, although the Minister of Justice will appoint a total of five Board members, his power to appoint three of them will be very limited because he will have to appoint persons nominated by the Minister of Finance and the Law Society, and there is no provision in the Bill for the Minister of Finance or the Law Society to put forward the name of more than one nominee.  Hence the Minister of Justice will not be given a choice in the appointments.  That said, whether through the Minister of Justice or the Minister of Finance, the Government will be able to appoint five members of the eight-member NPA Board.

Deputy Prosecutors-General

Clause 5 of the Bill will insert a new section 8 into the NPA Act which will oblige the Board, “in consultation with the Minister”, to appoint one or more Deputy Prosecutors-General to head divisions or departments of the NPA.  The new section will replace the existing section 8, which provides for the appointment of a National Director of Public Prosecutions.  The Bill will therefore have the effect of abolishing the post of National DPP.  There is provision later in the Bill [clause 8] for the current National DPP to become a Deputy Prosecutor-General.

Comment

The appointment of Deputy Prosecutor-Generals will have to be made by the Board “in consultation with” the Minister of Justice, and it is not clear how much control the Minister will have over their appointments.  There is legal authority for the view that when something has to be done in consultation with a person, it must be done with that person’s agreement or consent.  If that view is adopted in relation to the appointment of Deputy Prosecutors-General, the Minister will have a power of veto over the appointments.

Secretary to the Authority

Clause 5 of the Bill will also insert a new section 8A into the Act which will have the effect of giving the present Director of Administration a new title, namely Secretary to the Authority. The Secretary, like the Deputy Prosecutors-General, will be appointed by the Board in consultation with the Minister.

Clause 7(b) of the Bill will make a more important change regarding the Secretary:  whereas the Director of Administration must report to the Permanent Secretary of the Ministry Justice, the new Secretary to the Authority will report to the Prosecutor-General.  This should make the NPA a bit more independent of the Ministry, at least in administrative and financial matters.

Evaluation of the Bill

The purpose of the Bill, according to its memorandum, is to improve the governance structure of the NPA.  It is a pity therefore that the Bill does not incorporate into the NPA Act some of the principles of good governance that are set out in sections 9 and 194 of the Constitution.  The first of these sections requires the State to adopt legislation to develop “efficiency, competence, accountability, transparency, personal integrity and financial probity” in governmental institutions.  All these values are needed in the NPA, and the Act should be amended so that the Prosecutor-General and his officers are reminded of them.

As it is, there is nothing in the Bill which will clearly enhance good governance in the NPA.  There is no provision, for example, enjoining the Board to promote a merit system through which vacancies are filled by competitive procedures, a system in which formal qualifications and specific work experience are established for every position and grade in the NPA.  Instead, the Bill seems to be directed at enhancing the Government’s control over the NPA, in relation to both the Board and the Deputy Prosecutors-General.

Perhaps the Bill was drafted in anticipation of the Constitution of Zimbabwe Amendment (No. 2) Bill, which is currently before Parliament.  If that Bill is passed the President will have increased powers in regard to the appointment and dismissal of the Prosecutor-General, whose independence will be correspondingly diminished.  Presumably the Government feels that if the Prosecutor-General himself is to be less independent there is no reason for the NPA to retain its independence.  If that is the Government’s view it is to be deprecated.  Prosecutorial independence and impartiality are important values which must be preserved if the rule of law is to be upheld in these politically polarised times.