CONSTITUTIONAL law professor Muna Ndulo has observed that the Director of Public Prosecutions’ office has somehow surrendered its powers to the police.
In a paper titled ‘The moral arc of justice: Zambia persecutions or prosecutions, – the DPP’s role’, Prof Ndulo contends that the scenario has caused concern among many stakeholders.
He said according to the country’s law, the DDP was responsible for all prosecutions.
“The criminal prosecution system in Zambia has given most Zambians cause for concern. Currently, one of the most alarming practices is the police charging people with serious unbailable crimes and keeping them behind bars on the pretext that they are waiting for instructions from the DPP’s office on how to proceed in the case,” he wrote. “The DPP then inordinately delays giving the instructions which results in the accused remaining behind bars for a protracted period of time. This scenario suggests that in Zambia, the police have captured the prosecution service, and have taken over the constitutional responsibilities of the DPP and determine who is prosecuted, when, and for what. The police arrest and draft charges and then refer the matter to the DPP.”
Prof Ndulo explained the procedure for charging a suspect was stipulated in the law.
“In practice, it should be the other way round. The police should arrest people and prepare the docket and hand it over to the DPP to determine whether a criminal charge is sustainable on the evidence provided and the drafting of charges. Drafting charges requires legal training, which the police do not have. Investigation (a police function) and prosecution (prosecution function) are two distinct functions,” Prof Ndulo said.
He explained recent cases where suspects were wrongly charged due to police incompetence.
“A number of recent cases demonstrate the appalling levels of drafting criminal charges in Zambia. In the [Martha] Mushipe sedition case, the drafters of the charges were ignorant of the legal definition of sedition and the magistrate expressed surprise that a charge was brought on the facts presented to the court which did not disclose sedition by any stretch of imagination,” Prof Ndulo said. “In 2018, Hakainde Hichilema was charged with treason and the charge sheet did not disclose an overt act, a necessary element in any treason charge. In 2016, [Obvious] Mwaliteta and others were charged with robbery for questioning election results. They were acquitted after spending a year in detention. In the Laura Miti and Pilato case in Livingstone, where the two were charged with assaulting police officers and disorderly conduct, the police officers who testified could not agree on what happened at the church where the offence is alleged to have occurred. This is very basic legal knowledge which any well-trained lawyer should know.”
Prof Ndulo disclosed that in his time as a prosecutor, he and others would visit police stations to liaise on criminal cases.
He said training for lawyers catered for criminal charge drafting, which police officers would not know.
“Part of the criminal procedure course in the law degree teaches one how to draft criminal charges and criminal law course teaches lawyers the elements of the crimes. Clearly, in Zambia as the cases above demonstrate, the charge is more important than its outcome,” Prof Ndulo noted. “As a prosecutor in the Legal Affairs office in the 1970s, we reserved Thursdays as a day to visit the Lusaka Central Police to vet dockets. We went through dockets with the police and advised them to close dockets when the facts did not reveal a crime and asked them to gather further evidence where this was necessary in order to sustain a charge.”
Prof Ndulo said people were currently slapped with defective charges because police had taken an upper hand instead of the DPP.
“Nowadays people are brought to court on defective charges and the police have taken the upper hand while the Director of Public Prosecutions now seems to follow the police with cap in tow. The practice represents the degradation of the prosecution services, this has fundamentally compromised governance and placed at risk the reliability and predictability that is demanded of the criminal justice system by the rule of law,” Prof Ndulo said. “Apart from this sad development, this exemplifies the corrosive effect on our institutions and on the fundamental concept of the right of the accused person to a speedy trial. There are only two possible explanations for the situation, either the DPP office is compromised and is playing political games or the office lacks the necessary integrity or competence to undertake competent prosecutions.”
Prof Ndulo said it was clear that the DPP’s office had abandoned its constitutional mandate.
“… As can be seen from these provisions, the Constitution gives the Director of Public Prosecutions complete control of all prosecutions in Zambia. No prosecutions can proceed without the DPP’s consent. If someone is in charge of prosecutions, they would have to give directions or furnish guidelines to the police, including investigative officers and prosecutors setting out standards of professional responsibilities and essential duties of prosecutors,” said Prof Ndulo. “In closing, I would like to say that it is important that we set to recapture the police and the prosecution service so that we ensure that prosecutors carry out their functions in accordance with the Constitution which provides that the Director of Public Prosecutions shall be independent in the performance of her functions. The DPP and her prosecutors should exercise their functions free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. They should at all times uphold the rule of law, integrity of the criminal justice system and the right to a fair trial.”