Call to amend law sections that favour criminals
THE National Prosecuting Authority (NPA) has called on legislators to consider a robust amendment of some sections of the law that seem to be working in favour of criminals thereby affecting the justice delivery system.
Acting Prosecutor General Mr Nelson Mutsonziwa said they have noted that prosecutors are at times accused of corruption when criminals are either spotted roaming the streets or skip the country upon release on bail by the High Court.
Addressing prosecutors from across the country, the police, Zimbabwe Anti-Corruption Commission (Zacc) and delegates attending the NPA strategic plan review workshop in Gweru yesterday, Mr Mutsonziwa said in discharging their duty, they have encountered legislative challenges that affect prosecutors in terms of effectively executing their mandate.
“We have made a set of proposals for the amendments to an assortment of legislation. In our view, that would greatly improve our efficiency and effectiveness in the prosecution and timeous delivery of criminal justice,” he said.
Under the bail on indictment to the High Court, Mr Mutsonziwa said the position of the law in the immediate past was that upon an indictment for trial to the High Court, bail would automatically be revoked.
“The consequence of this amendment is that such persons often abscond trial after being indicted thus increasing uncompleted cases such as murder. We have therefore, proposed for the restoration of the previous position as it will enable the State to timeously complete criminal cases before the High Court as there will be no risk of abscondment,” said Mr Mutsonziwa.
He said Section 8 of the High Court Act provides that if at any time during a criminal trial one of the assessors die or become incapacitated, the judge may, if he or she thinks fit, with the consent of the accused and the prosecutor, can direct the trial to proceed without that assessor.
“That section has proven to be problematic in instances where an assessor dies during the trial and the accused withholds his consent for trial to proceed without that assessor. The State would be forced to conduct a start the trial afresh thus delaying the dispensation of justice,” said Mr Mutsonziwa.
He said the cases will be further complicated if material witnesses die or cannot be located.
NPA, he said, is proposing that the law be amended to allow for a judge to proceed with a trial where one of the assessors or both passes on or become incapacitated.
Mr Mutsonziwa said Section 174 of the Criminal Law (Codification and Reform) Act provides that if a public officer, in the exercise of his or her functions, intentionally does anything that is contrary to or inconsistent with his or her duty as a public officer or omits to do anything which it is his or her duty as a public officer to do to show favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer.
“Our courts have ruled that this section does not apply to employees of a Government entity which is registered under the Companies Act thus undermining our efforts to fight crime and corruption in those agencies. We, therefore, propose that the definition of “Public Officer” be amended to cover acts committed by officers in state-run Companies Act,” he said.
Mr Mutsonziwa said they are experiencing challenges in successfully prosecuting forex dealers because in most cases the receivers of the money refuse to testify against the accused persons as they are accomplices.
“We have proposed that the law be amended to provide for a reverse onus on persons accused of illegally dealing in forex. This will make our task much easier in prosecuting such crimes,” he said.
Mr Mutsonziwa said the Money Laundering and Proceeds of Crime Act provide that orders for civil forfeiture may not be granted concerning property acquired or used before this Act came into force.
In a recent judgement involving the Prosecutor General versus Tapiwa Chidemo and others under Case number HH 416-22, the court ruled that this provision prohibited the forfeiture of property acquired before the Act came into force.
“This, therefore undermines our efforts to fight crime and corruption as it precludes the State from seeking the forfeiture of property acquired before the Act into force even if such property is tainted property,” said Mr Mutsonziwa.
He said they have since appealed against the court’s ruling. NPA is proposing that the section be amended to expressly provide for the forfeiture of tainted property acquired before the commencement of the Act.
Mr Mutsonziwa said the minimum threshold to initiate unexplained wealth applications was US$10 000 before the threshold was raised to US$100 000.
“We are of the view that the current threshold promotes crime and corruption and goes against our goal of disgorging criminals of the fruits of their criminal enterprises. We, therefore, propose that the threshold be reduced to US$20 000,” he said.
Mr Mutsonziwa said a lot of time and resources are wasted on bail applications instead of the State focusing on investigations and trials.
He said in some cases, accused persons facing serious allegations after being admitted to bail abscond trial thus impeding the wheels of justice.
“We, therefore, suggest that the Constitution be amended to allow for the promulgation of a law that will permit the Government to specify certain offences as non-bailable for a given duration such as armed robbery, serious sexual offences, politically related public violence during the election and serious corruption cases,” said Mr Mutsonziwa
“This will reduce the costs of investigating and prosecuting and ultimately protect society from these criminals.”
Mr Mutsonziwa said they are also proposing an addition of plea bargaining which is an arrangement between State and accused whereby the accused pleads guilty to a charge in exchange for a more lenient sentence or an agreement to drop other charges or some other arrangement.