Crime must be prosecuted in public interest. The procedure for setting the wheels of the criminal justice system into motion is dictated in the Criminal Procedure Code Act (CPC), Chapter 88 of the Laws of Zambia. A person suspected of having committed a criminal offence or about to commit a criminal offence can be arrested by a police officer or by members of the public and then handed over to the police. Thereafter, the suspect is formerly charged and the docket submitted to the Director of Public Prosecutions (DPP) for purposes of presenting the matter and the suspect before the court. Alternatively, a member of the public can file a complaint before a Magistrate. If the complaint is substantiated, the court summons the accused to answer the charges laid against him. This process is what is commonly referred to as institution of criminal proceedings, and proceedings only come to an end after an accused person has been convicted, acquitted or the matter is otherwise withdrawn.
Private Prosecutions: With regard to matters under private prosecutions, it was observed during the review of the CPC that, following the Constitutional Court decision in Wang Shunxue v. The Attorney General and another CCZ 3 of 2021 in which the court held that a person may not conduct a private prosecution except with the permission of the DPP, the decision prejudices the intention of the law which is to provide a complainant with the opportunity to pursue a prosecution where the DPP fails or refuses to do so. Consequently, a recommendation that a provision be inserted in the CPC that “a person shall not require the permission of the DPP to carry out a private prosecution.” The only exception should be in cases that require DPP’s express consent as provided in Section 85 of the CPC.
Nolle Prosequi: The Constitution vests prosecutorial powers in the DPP. The DPP can commence, takeover or discontinue criminal prosecutions. If the discretion not to proceed with the matter is exercised, the DPP is said to have entered a nolle prosequi and is under no obligation to give reasons for making such a decision. However, the right to re-arrest and prosecute the person, on the same charges, is reserved indefinitely. During the review of the CPC, stakeholders submitted that “although the powers of the DP to enter a nolle prosequi are appreciated, it was observed that there was need to put in safeguards to ensure that such powers are not subject to abuse. It was observed that whilst national interest considerations could justify entering of a nolle prosequi, there was a need to clarify what constitutes issues of national interest.” Further, stakeholders submitted that a nolle prosequi is a double-edged sword and a political tool within the justice system used to spare sacred cows.
Therefore, stakeholders submitted that the DPP should give reasons for entering a nolle, and the law should provide for time limit within which a person can be re-arrested so that there is closure to the matter. It was further submitted by stakeholders that a nolle prosequi needed to be accompanied by a requirement to give reasons to the presiding officer of court to act as a check on the excesses of application of discretion. After weighing the submissions against national interest and public policy considerations, no recommendation, to impact or change the manner in which the discretion to enter a nolle is exercised, was made. However, the Technical Committee recommended that publicly accessible prosecutorial guidelines on the exercise of the nolle be developed.
Abatement: The accused person’s death suppresses or ends criminal proceedings against him or her. This is referred to as abatement. It was observed that the law only provides for the abatement of the case where an accused person dies before conviction but does not provide for the effect, on criminal proceedings, of the convict’s death prior to sentencing. Therefore, it was recommended that “Insert a provision to the effect that where an accused person dies after sentencing but before judgement, the criminal proceedings will abate.”
Hostile Witness: The criminal law principle on how to proceed where a witness turns hostile is not provided for in legislation, but in case law such as Munalula v. The people (SCZ Judgement No 15 of 1982). Stakeholders submitted that it should be provided for in order to ensure that the CPC is comprehensive. Consequently, it was recommended that a provision be introduced in the CPC to provide for procedure for dealing with a hostile witness.
Our article next week is titled “Deposited and forgotten”. Don’t miss it!
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