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Something has seriously gone wrong with our criminal justice system

It is a well-known fact that throughout history, those who administer or control the criminal justice system hold the power with the potential for abuse and tyranny.

The statutory powers to arrest and prosecute those who commit crimes should be reasonably exercised and in good faith. By allowing people to be unjustifiably arrested and prosecuted, the Director of Public of Prosecutions is sending a dangerous signal that the criminal justice system can used to persecute and fix opponents of the regime.

The only antidote to the culture of venality is the readiness of the Director of Public Prosecutions to apply the laws fairly and equally.

In Freedom under the Law, Lord Denning wisely remarked, “All power corrupts. Total power corrupts absolutely. And the trouble about it is that an official who is the possessor of power often does not realise when he is abusing it. Its influence is so insidious that he may believe that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority. The Jack-in-office never realises that he is being a little tyrant.”

Professor Muna Ndulo is justified in concluding that the Director of Public Prosecutions’ office has somehow surrendered its powers to the police.

“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,” Prof Ndulo writes. “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. 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. 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. 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.”

Something has seriously gone wrong with the administration of our criminal justice system. And this is a very serious degradation of the prosecution system which 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.

“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,” concludes Prof Ndulo.

It is very clear that the DPP’s office has abandoned its constitutional mandate. 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. The DPP should exercise his/her functions free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. He should at all times uphold the rule of law, integrity of the criminal justice system and the right to a fair trial.

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