NOLLE PROSEQUI
… the necessary evil in the prosecution process
ACCORDING to law dictionaries, the term “nolle prosequi” is a Latin phrase that means “unwilling to pursue.” It is pronounced as nol·le pros·e·qui (nälē ˈpräsəˌkwē). The term is sometimes abbreviated as “nolle prosse” or “no pross. Simply put - it is the prosecutor’s legal notice to discontinue a case.
In opting to use plain and modern language, judicial systems like that of the United States of America (USA) use the term “dismissed.”
The legal procedure of entering a nolle prosequi arose in England as part of its common law, a judicial system Zambia adopted. In our Judicial system, the Director of public prosecution (DPP) has powers vested in that office by Section 81 and 82 of the Criminal Procedure Code to declare voluntarily ending a criminal case before the case could be dismissed by the court or a verdict could be rendered at trial.
DEBATES SURROUNDING NOLLE PROSEQUI
In Zambia whenever the DPP enters a nolle prosequi in “high profile cases” or cases involving politicians, fierce public debates are ignited.
These debates encourage conspiracy theorists to come up with wild conspiracy theories of what could have made the DPP enter a nolle prosequi in a particular case.
What the conspiracy theorists choose to deliberately ignore is - the DPP is the Chief prosecutor for the Zambian Government and this independent constitutional office is free from any political influence or control.
THE DPP IS NOT COMPELLED TO GIVE REASONS FOR ENTERING A NOLLE PROSEQUI
According to the landmark case of the Director of Public Prosecution v Mbayo Mutwala Augustino (1977) ZR 287 (SC), the DPP’s decision to enter a nolle prosequi can not be challenged because it is not an application but an legal notice given to the Court. Further, the DPP can not be compelled by neither the Court nor the defence to provide reasons why a nolle prosequi has been entered.
REASONS WHY THE
DPP MAY DECIDE TO ENTER A NOLLE PROSEQUI
Why would a prosecutor file formal charges only to later enter a “nolle prosequi”? This question is always asked whenever a nolle prosequi is entered.
The DPP, who is the Chief prosecutor as earlier stated, is not compelled to explain the reasons for discontinuing a case. Be that may, the following are the reasons that may compel the DPP to enter a nolle prosequi:
insufficient or irrelevant evidence to support the charges and secure successful prosecution
demonstration of innocence by the defendant
witness or witnesses’ failure to cooperate
Desire to give the defendant a second chance
A NOLLE PROSEQUI “THE NECESSARY EVIL”
Various learned lawyers and legal scholars have described the nolle prosequi as a necessary evil which has some fulfilling benefits in the prosecution process especially when entered with the interest of pursuing justice.
Entering a nolle prosequi supports the legal maxim “justice delayed is justice denied” because it beats the logic of justice to keep the case going on for a long time in Court when for instance the DPP does not have sufficient evidence to prove the case beyond any reasonable doubt.
CONCLUSION
In my view, the DPP entering a nolle prosequi to some degree supplements the presumption of innocence as enshrined in our Bill of rights as Article 18 (2) (a) of the Constitution of the Republic of Zambia provides that “every person who is charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.”
I think the crafters of the English common law decided to introduce the nolle prosequi in criminal cases in order to save the Court’s time and the defendants rights when the prosecutors, who the burden of proof lies with, feel they won’t be able to successfully prosecute.