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Trust Maanda
Post Correspondent
IN terms of Section 258 of the Constitution of Zimbabwe, the National Prosecuting Authority was established and is responsible for instituting and undertaking criminal prosecutions on behalf of the State.
Within this institution are officers.
One of the officers is the Prosecutor-General who is the head of the National Prosecuting Authority.
In the National Prosecuting Authority and under the Prosecutor-General are officers called prosecutors.
A prosecutor represents the State in criminal trials.
He or she has a duty to prosecute criminal cases that come before the courts.
His or her role is critical in the achievement of justice.
They should exercise their role in a manner that achieves fairness of the trial.
The prosecutor must not be biased or partial.
The prosecutor’s role is pivotal in the criminal justice delivery.
There should be due regard paid to fair trial rights of an accused.
The right to a fair trial is absolute.
In Smyth v Ushewokunze and Another:1998 (3) SA 1125 (ZS) at 1130I/J-1131G per Gubbay CJ, as he then was, said: “A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness.
“Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a ‘minister of the truth’ he has a special duty to see that the truth emerges in court.”
A prosecutor must produce all relevant evidence to the court and ensure, to the best of his or her ability, the truthfulness of such evidence.
He or she must state the facts just as they are and is not supposed to be personally involved.
If he or she comes across information that will work in favour of the accused, the prosecutor must mention it.
If the prosecutor comes across a credible witness who can speak of facts which go to show the innocence of the accused, he or she must call that witness if the accused is unrepresented; and if represented, tender the witness to the defence.
A criminal trial is not a game of hide and seek but a pursuit for justice.
The prosecution must be open to the defence lawyer by advising of the evidence to be adduced and documents to be produced.
The State should not withhold relevant information as that would offend fair hearing rights of an accused.
If his or her own witness substantially departs from what he or she should prove, the prosecutor must draw the attention of the court to the discrepancy.
The prosecutor must reveal any seriously contradictory passage in the statement of the witness to the defending practitioner.
The prosecutor has a duty to place before the court all material essential for the investigation of the truth.
Only the prosecution has all the resources of the State, including finances, the police and vital information, at its disposal and that creates the duty to put all information before the court for truth to be established.
However, the prosecutor must not be involved in the investigations.
The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the court what the prosecution deems to be credible evidence, relevant to the charge before the court.
In all this, everything must be done fairly but firmly.
The prosecution must not have the notion of winning or losing.
It is not the prosecution that wins or loses a case.
The prosecutorial powers are in the community’s interest.
Community is not interested in the conviction or acquittal but is interested in justice.
The right to a fair hearing by an independent and impartial court, as entrenched by Section 69(1) and (2) of the Constitution, has been construed to include a requirement that the prosecution show fairness and impartiality in its treatment of the accused person.
In Smyth’s case, the court held: “The right to a fair trial before an impartial court must be interpreted in a broad manner so that impartiality is, not only of the presiding officer, but the impartiality of the prosecutor, whose function, as an officer of the court, forms an indispensable part of the judicial process.”
The conduct of the prosecution must reflect on the impartiality or otherwise of the court.
The role of the prosecutor should be played for the due administration of justice.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
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