National Prosecuting Authority Amendment Bill Analysis

National Prosecuting Authority Amendment Bill Summary and Analysis

Background:

The National Prosecuting Authority (NPA) was created by section 258 of the 2013 Constitution. It has the responsibility of instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions. An Act to bring life to the Constitutional provision was passed as Act 5/2014. The creation of the NPA saw law officers then under the Criminal Division of the then Attorney-General’s Office transfer from the Office, the Ministry of Justice and the Public Service Commission to the new entity. The NPA, through its Board, could recruit and fire its officers.

The Bill:

The Memorandum of Principles states as follows:

This National Prosecuting Authority (Amendment) Bill, 2019 is designed to improve the governance structure of the National Prosecuting Authority. The Bill also takes account of the accounting status of the Authority. The Bill provides for the appointment of Deputy Prosecutors-General to assist the Prosecutor-General in the discharge of his or her constitutional mandate.

At the time of the repeal of the previous Constitution there was a Deputy Attorney-General responsible for the Criminal Division. The 2013 Constitution did not make provision for a Deputy Prosecutor-General. The Bill will provide for this, and will also amend the principal Act as well as the Criminal Procedure and Evidence Act (Chapter 9:07).

 

Clause 2: Interpretation Section:

This clause will repeal certain definitions of terms, such as Director for Administration and National Director of Public Prosecutions, and insert new ones. It introduces a definition for a “Secretary to the Authority” who will be appointed in terms of section 8A of the Act once amended. It also defines a Deputy Prosecutor General (DPG) to be appointed in terms of Section 8 of the Act.

Clause 3: Amendment of Section 4:

The clause will introduce the Secretary to the Authority and the DPG into the structure of the NPA. The effect is to reconstitute the structure of the NPA.

Clause 4: Amendment of Section 5:

This clause will reconstitute the Board of the NPA. The current Board comprises of the following:

  • the Prosecutor-General, who is the chairperson
  • the Deputy Prosecutor-General, who is the deputy chairperson
  • The Director of Administration of the NPA
  • a judge or former judge appointed by the Minister after consultation with the Judicial Service Commission
  • a member of the Civil Service Commission appointed by the chairperson of that Commission, and
  • four other members appointed by the Minister of Justice.

 

Pursuant to the Bill the Board will have a new complexion as the Bill provides as follows:

(1a) The Board shall consist of—

(a) the Prosecutor-General; and

(b) a person who has been or is qualified to be a judge of the High Court or Supreme Court, appointed by the Minister after consultation with the Judicial Service Commission; and

(c) a Commissioner of the Civil Service Commission appointed by the Chairperson of the Civil Service Commission; and

(d) five members appointed, subject to subsection (2), by the Minister, of whom—

(i) one shall be a person employed in the Ministry responsible for justice, nominated by the Minister responsible for justice; and

(ii) one shall be a person employed in the Ministry responsible for finance nominated by the Minister responsible for finance; and

(iii) one shall be a person appointed for his or her ability and experience in human resources management and development; and

(iv) one shall be a person registered in terms of the Public Accountants and Auditors Act [Chapter 27:12], nominated by the Minister responsible for finance after consultation with the Accountant General; and

(v) one shall be a person registered in terms of the Legal Practitioners Act [Chapter 27:07], nominated by the Law Society of Zimbabwe.

Section 259 of the Constitution makes reference to the independence of the NPA. However it would seem that from the composition of the Board, Executive dominance is apparent.

Under the same clause, the President will also appoint from the membership in 1(a)-(d) a Chairperson and Deputy Chairperson, who shall be of different genders.

The PG shall appoint his/her Deputy as his/his alternate. The Secretary to the Authority shall be the Secretary to the Board of the NPA.

 

Clause 5: Amendment of Section 8:

The section will be amended to provide for the appointment of DPG/s. it provides:

(1) The Board shall, in consultation with the Minister, appoint such number of Deputy Prosecutors-General as it deems necessary. (2) The Deputy Prosecutors-General shall— (a) head specific sections or departments of the Authority and shall supervise the members assigned thereto by the Prosecutor-General; and (b) shall be subject to the direction of, and report, to the Prosecutor-General on the discharge of their duties.

 

As pointed above under the old Constitution there were Deputy Attorneys-General (DAGs).

The same clause will create the office of the Secretary to the Authority with administrative and technical supervisory functions over staff of the NPA. For purposes of the financial administration and accountability issues under the Public Finance Management Act, the Secretary to the Authority will be designated as the accounting officer of the NPA.

 

Clause 6: Amendment of Section 12:

This clause will remove reference to the National Director of Public Prosecutions, a post that the Bill abolishes, and replaces it with that of DPG.

 

Clause 7: Amendment of Section 15:

The clause will remove references to Director of Administration and replace it with the newly created Secretary to the Authority. It will also provide that the Secretary to the Authority will report to the PG, not to the Ministry of Justice as the Director of Administration currently does.

 

Clause 8: Transitional Provisions:

This clause provides as follows:

(3) The person who immediately before the commencement of National Prosecuting Authority Amendment Act, 2019 was employed by the Authority as the National Director of Public Prosecutions shall be deemed to have been appointed as one of the Deputy Prosecutors-General in terms of this Act, and his or her service with the Authority as the Deputy Prosecutor-General shall be deemed to be continuous with his or her service as the National Director of Public Prosecutions.

The provision seeks to ensure that there is smooth transition into the new structure of the NPA. In this regard, retention funds under the purview of the NPA will continue to subsist pursuant to the amended section 32(9).

 

Clause 9: Amendment of Chapter 9:07:

The Criminal Procedure and Evidence Act is the main statute on the procedures for the prosecution of crime in Zimbabwe. This clause will amend section 2, by removing the definition of National Director of Public Prosecutions, as the office is being removed. In section 6 of the Act, the clause will insert the DPGs, who will be appointed in terms of the NPA Act. Section 266A(6) of the Criminal Procedure and Evidence Act will also be amended to remove reference to the National Director of Prosecutions, and replace it with reference to the DPG.

 

 

 

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