The judgement of the Honourable Chitapi J in the matter of [Saviour] Kasukuwere v Mujayi NO & Others (HH-562-19) (delivered on August 21 2019) is on the face of it scathing to the police, Zimbabwe Anti-Corruption Commission (Zacc), National Prosecuting Authority (NPA) and, of course, to the magistrate. In reality, it's a scathing judgement against the independence of the entire prosecutorial machinery. It calls for some serious retrospection and introspection by these bodies and it certainly cannot be business as usual from here going forward. This article, in light of the court's judgement, looks at how we got to where we are and what needs to be done going forward.
But first, what is the judgement all about?
Former minister Kasukuwere was as powerful as they come; more so in the last days of the government of the late former president Robert Mugabe. He was believed to be one of the kingpins of the faction known as the G40 which was apparently led by the then first lady Grace Mugabe. Before Kasukuwere's unceremonious exit, he was Local Government and National Housing minister.
During the so-called "Operation: Restore Legacy" where Mugabe was deposed from power, the army said it was focusing on criminals surrounding the president.
Kasukuwere was one of the so-called criminals the "conspirators" had pointed out to be surrounding the president. People like him, as the story goes, and not the president, were the problem.
Soon after the new government took over, Kasukuwere was arrested and charged for border jumping (contravening the Immigration Act by leaving the country without getting his passport stamped). Surely, the nation expected much more. After all, this was one of the key criminals surrounding the president. The magistrates' court acquitted Kasukuwere after he had successfully proven that he had fled in danger of his life.
The court and the whole country saw the numerous bullet holes that had scarred his residence after a not-so-friendly visit by the army. Over 100 empty AK47 cartridges were placed before the court as exhibits. If this "criminal surrounding the president" deserved so many bullets, then surely he had a huge case to answer before the courts. Or so we thought.
On Twitter he laughed at his oppressors as he gloated in his "not guilty" verdict.
But that was only the first battle. A mere appetiser. This only made sense because having justified a coup on the basis of "criminals surrounding the president", there was need for a real shocker. We all expected a comprehensive dossier of offences to be unleashed. We expected many charges like the numerous bullets that had scarred his beautiful mansion, but unlike those bullets, the nation expected some of them to stick.
Kasukuwere was rearrested and was charged with four counts of criminal abuse of public office. What a farce. Having almost killed this man accusing him of being a criminal surrounding the president, the new government could only find four counts. At that time, giving them the benefit of the doubt, one could say they were only favouring the most serious charges of which upon conviction a hefty prison term would be a certainty.
Of the four charges Kasukuwere faced, three related to allocation of residential stands in his capacity as Local Government minister and the fourth related to a tender award when he was Youth Empowerment and Indigenisation minister.
A conviction of criminal abuse of public office carries with it a sentence of up to 15 years' imprisonment. It is a very serious offence often warranting a custodial sentence. A conviction on all four counts is an instant jail ticket. Such a conviction gives credence to the accusation that there were criminals surrounding the president. An acquittal leaves mud in their faces.
To carry out this and other prosecutions, the president created a controversial Special Prosecuting Unit in his office. It is controversial because according to the constitution, prosecution of crimes in the name of the state is the exclusive domain of the Prosecutor-General. The president cannot have his own prosecutors. But that's a story for another day.
On the day when trial was to commence, Kasukuwere's lawyers indicated that they wanted to except to the charges. Excepting to a charge is a special technical procedure taken by an accused person where instead of pleading (i.e, saying he is guilty or not guilty), he says the charge is defective in one way or the other and for that reason a trial cannot proceed until the defect is cured.
The prosecutor is often provided with notice that an exception will be raised. The purpose of the notice is to allow the prosecutor to reflect on how he has phrased the charges and to give him/her an opportunity to amend the charges thereby curing the defect complained of.
The main complaint raised in the exception was that the charges did not mention how exactly Kasukuwere was supposed to have done his job. In simple terms, the charges mentioned that he had abused his office by offering residential stands to certain people thereby favouring such people, but they did not mention the standard upon which he was being judged against.
Criminal abuse of office is the criminalisation of failing to do a job properly by public officers in a manner that shows favour or disfavour to another. It was, therefore, important for this standard to form the crux of the charges. This standard may be in the form of legislation, policy directives, cabinet minutes, presidential directives and the like.
The prosecutor was made aware of this in a 16-page document. His response was simply that the accused would be informed of those standards during the trial. Strangely, the trial magistrate agreed with him. It is this conduct by the prosecutor and the decision by the magistrate that formed the basis of a review application in the High Court and the subsequent judgment by Chitapi J.
The learned judge described the ruling of the magistrate as being "wrong in law, common sense and logic... " The magistrate is further described as having been "excitable" and "injudicious". Mind you, this is a senior regional magistrate of several years' standing. He is the one entrusted to try the most serious cases yet he is described in such damning language.
This is only the beginning though. Chitapi J, being a former board member of the National Prosecuting Authority, reserves the lethal venom to the prosecutor himself. He says: "I repeat my observations that I found it thoughtless and frivolous that such an important matter involving an ex-minister and as such being a matter of immense public interest could be scuppered or torpedoed by belligerence on the part of the prosecutor... "
The important question is how did we get to a stage where we have such low-quality prosecutions for such important matters? I hasten to mention that this is not an isolated case of poor-quality prosecutions. It has now become the norm. Should Zimbabwe have the misfortune of a publicised trial like that of Oscar Pistorius, it would leave the Gerrie Nels of this world cringing.
While they remain some professional, qualified and competent prosecutors, over the years, the prosecuting authority has failed to retain a majority of them, who leave for greener pastures after obtaining the necessary experience.
The authority has, in fact, been comfortable with using policemen, soldiers and prison officers who are seconded by their own respective authorities. These officers are not paid by the prosecuting authority and therefore ease budget constraints. From a rank perspective, they are mostly constables, a few sergeants and a couple of assistant inspectors. The law also allows designated state employees to have right of audience in the courts despite the fact that they are not registered legal practitioners. This scenario allows a number of half-baked lawyers to even become senior prosecutors without holding the requisite qualifications.
Where prosecutors are now mostly policemen, the necessary dichotomy between the two branches gets diluted. The need for the dichotomy is that prosecutors are supposed to direct the police as to what is needed in terms of evidence in order to secure a conviction. The prosecutors identify evidentiary gaps and the police fill them.
Where the police becomes both the investigator and prosecutor, the check and balance mechanism is removed. This is, however, only the genesis of the problem.
As this dichotomy has been removed over the years, the police have firmly established themselves in the prosecution authority. Only recently, in the case of Zimbabwe Law Officers Association & Another v National Prosecuting Authority & Others, has the Constitutional Court declared that the employment of members of the disciplined forces is unconstitutional. The court proceeded to give the NPA a two-year moratorium to sanitise its workforce.
In 2006, with the promulgation of the Criminal Law Code and introduction of the offence of criminal abuse of office, the police discovered that they could arrest prosecutors who refuse to prosecute a case, even if such prosecutor had good reasons.
As an aside, it is also interesting to note that the police problems in the NPA are the same as that in Zacc. The investigating department is filled by police officers that have been seconded to Zacc. Zacc probably has no budget to employ its own investigators and relies on the police. There is certainly no independence and these police officers ultimately are accountable to their rank and file. That Zacc should have its own investigators and must be independent from institutions such as the police, is a point that should not even be argued.
It is worth noting that in 2013 when the new constitution was promulgated, the office of the Prosecutor-General was created and this officially created an independent National Prosecuting Authority. Previously, criminal prosecutions fell under the office of the Attorney-General who was also government's chief legal adviser. The idea was to subject prosecutorial discretion only to the constitution and the law.
In 2016 the police arrested the then prosecutor-general Johannes Tomana on allegations of criminal abuse of office after he withdrew charges before plea against two accused persons who had been arrested for intending to plant a bomb at the then First Family's dairy farm (Gushungo Dairies). The reason for the withdrawal was that the accused persons were actually military intelligence informers.
Having arrested the PG, those accused were rearrested and the prosecution was ordered by the police to oppose bail. At the bail hearing a senior police officer came and testified against the granting of bail whilst a military intelligence officer testified in favour of the granting of bail.
These proceedings were held in camera (i.e, in the absence of the public eye) and although it seemed these two officers were fighting each other for and against the liberty of the accused persons, but in reality these two institutions, i.e, the police and the army were fighting for the control of the National Prosecuting Authority. This they were doing on behalf of their political principles. It is unprecedented that the police and the army would have such strong opposing views in a court of law particularly over whether certain individuals constitute a security and flight risk or not..
President Emmerson Mnangagwa is well too aware of these fights as he was Justice minister when all this was occurring and it is for this reason why he established the special prosecuting unit in his own office. The reasoning, seemingly, would be to control and direct the prosecutions personally. To give him the benefit of the doubt, this would curb the wars for those institutions (and faction leaders) that want to control the prosecuting machinery.
If this is the reasoning, it is difficult to comprehend how this can be done as the legal advisor in the president's office is the former Deputy-Prosecutor General. The same person who prosecuted her own boss having been instructed by the police to do so. She was quietly removed by the president from that post purportedly on the recommendation of the Chinhengo Commission that had been established to enquire into the fitness of Tomana to continue to hold the office of Prosecutor-General.
After the previous prosecutor general Ray Goba resigned from office after having been charged with gross misconduct, Kumbirai Hodzi was appointed as PG. Hodzi had been ranked sixth in the interviews carried out by the Judicial Service Commission. He was, however, a favourite for the president as he was the current acting PG and he had acted closely with the president when the latter was Justice minister and the former was deputy attorney-general. Hodzi is clearly that kind of person that the top political leadership can trust with such a high office.
Hodzi's appointment to the office of PG was challenged in the Constitutional Court, but the challenge did not see the light of day. Very recently, Hodzi has been prosecuting all the lawyers that were involved in the Constitutonal Court challenge of his appointment. The arrested lawyers include advocates Thabani Mpofu and Choice Damiso and also attorney Tapiwa Makanza. Such prosecutions are the result of a botched appointment process. One cannot expect a good cake from a bad method.
At the end of the day, what we have is a need for institutions and individuals to control the prosecuting authority. One way of controlling the institution is by financially weakening it and staffing it with underpaid, under qualified, under experienced and politically needy people. Another way is hiring lawyers in private practice as prosecutorial mercenaries. One of the results of these strategies is shoddy prosecutions which explains the conduct of the Kasukuwere prosecution and the rage of Judge Chitapi.
The weakening of the prosecutorial system has been systemic over the years. Only the Prosecutor-General has constitutional protection and has tenure like a superior court judge. The rest of the staff can be picked and dropped like urban commuters with life seemingly continuing to move just as normally. But if the treatment of the last two Prosecutors-General Messrs Tomana and Goba, is anything to go by, then it is certain the State has absolutely no respect for this high office or anyone subordinate to it.
What is needed is a genuine fulfilment of the constitutional obligations pertaining the office of the PG. Firstly, a genuinely qualified PG as recommended by the JSC. Secondly, a removal of uniformed forces personnel from the PGs office, even as administrative staff. These institutions need to stop calling the shots directly or indirectly over prosecutorial discretion.
Guidelines must be established as to the circumstances upon which a prosecutor who exercises prosecutorial discretion can be said to have criminally abused his/her office. The guidelines/regulations must also establish a procedure as to how and when criminal proceedings should be instituted against such an officer. Subject to control only from the PG, or his lawful delegates, court prosecutors must be allowed a level of independence when executing their prosecutorial function. In so doing they must be guided by the Constitution, the laws, their oath of office and their consciences.
Further, the NPA must recruit qualified staff and must subject such staff to continuous professional development both locally and internationally. For prosecutors, the minimum qualification should be a Bachelor of Laws (LLB) degree with promotion only being granted to those that are registered as legal practitioners notwithstanding their time of service.
Most importantly, the staff should be well remunerated that they need not envy colleagues in private practice. In fact, the NPA should be able to lure experienced lawyers from private practice. In addition this office must be well resourced.
There should be no side prosecuting authorities acting under the president or whomever. All prosecutions should solely remain the domain of the independent PG with the NPA having the exclusive right to hire and fire prosecutors as is provided for in the National Prosecuting Authority Act and regulations.
Lastly, the PG's office must be well resourced. This last point can never be over emphasised.
In conclusion, politicians can only capture an institution during the life time of their political career. Once they leave the capture continues with another.
It is such capture by another that can make one regret the capturing of institutions. These institutions are designed to be independent for a reason and politicians must allow them to be. An institution can never and should never be allowed to be anyone's thing.
Politicians, more than anyone else, are potential accused persons. They must therefore be instrumental in ensuring that there are proper systems in place that ensure that all accused persons receive fair prosecutions from a truly independent and professional judicial system. If not, they shall rue when they one day appear before a person that is now captured by a political adversary.
Anyway, Kasukuwere lives again to fight another day.
l The author is a practicing advocate in Zimbabwe and writes in his personal capacity firstname.lastname@example.org