2. Independence of Prosecuting Authorities An Overview

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1 'Draft paper presented at African Network of Constitutional Law conference on Fostering Constitutionalism in Africa Nairobi April 2007 by Mabvuto Herbert Hara : shumbachamebers@sndp.org.mw The Independence of Prosecuting Authorities: The Malawi Experience Mabvuto Herbert Hara 1. Introduction Prosecuting authorities play a crucial role in the administration of justice. The decision to prosecute or not prosecute involves the exercise of discretion, and it is in the interest of justice that prosecuting authorities exercise that discretion freely, impartially and independently of any influence or interference. This paper reflects on the experience of Malawi with respect to the independence of prosecuting authorities. By way of background, the paper provides an overview of the concept of independence of prosecuting authorities. The paper then considers the experience of Malawi in the light of the basic principles of the independence of prosecuting authorities. It surveys the historical and constitutional background to the Constitution of 1994, before examining the independence of prosecuting authorities under that Constitution. It reflects on the structural arrangements of prosecuting authorities as well as the culture of the rule of law, and considers their bearing on the independence of prosecuting authorities. 2. Independence of Prosecuting Authorities An Overview It has been observed that, to complement an independent judiciary, a legal system based on respect for the rule of law needs strong, independent and impartial prosecutors, willing resolutely to investigate and prosecute suspected crimes committed against

2 2 human beings even if these crimes have been committed by persons acting in an official capacity 1. Unless prosecutors, like judges and lawyers, are able to exercise their professional duties freely, independently and impartially, the rule of law will slowly but steadily be eroded, and with it, effective protection of the rights of the individual 2. But then, what is independence of prosecuting authorities? It has been said that independence means that, In exercising their discretion prosecutors should be independent of influence, pressure or persuasion from those who have an interest in the outcome of that decision. It is not just Governments, but Police Services, any other Investigative Agency, the Court, and victims or the families of victims from whom the Prosecutor should be not only independent but seen to be independence. 3 The discretion exercised by the prosecutor involves the decision to prosecute, not to prosecute, to appeal a sentence, to indemnify a witness or give a witness an undertaking or assurance and, in some jurisdictions, decisions pursuant to specific statutory provisions e.g. the Director of Public Prosecution s consent to prosecute. This is what is commonly referred to as prosecutorial discretion. It has been argued that the independence of prosecuting authorities in deciding whether to prosecute or not, and in making prosecution policy, is an important constitutional principle in England and Wales, Canada and, generally throughout the Commonwealth 4. As long ago as 1792, the Attorney General of England, Sir John Scott (later Lord Eldon), asserted the complete independence of the Attorney General in deciding whether or not to prosecute. However, his successor, Charles Denman (later Lord Denman) disagreed. He acknowledged the right of the government to give instructions to prosecute. This began a controversy which continued intermittently as 1 Human rights in the administration of justice: a manual on human rights for judges, prosecutors and lawyers (200???) 116. Please, provide the author of this work? 2 as above, D Bugg, Accountability, Independence and Ethics in Prosecution Practice. at BA MacFarlane Sunlight and Disinfectants: Prosecutorial Accountability and Independence through Public Transparency. At law.com/articles 7.

3 3 the issue arose in particular cases 5. The issue was raised by the Campbell Case 6 in 1924 which brought down the first Labour Government. In brief, the Attorney General, Sir Patrick Hastings, authorised the prosecution of J.R Campbell, for having published an article which apparently sought to seduce members of the armed forces from their allegiance to the Crown. A few days later, the prosecution was withdrawn in circumstances which suggested that improper political pressure had been brought to bear on the Attorney General. It is noted that the Cabinet minutes record a decision by the Cabinet on 6 August 1924 that no public prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained. The Cabinet also agreed to adopt the course indicated by the Attorney General i.e. to withdraw the prosecution. It has been pointed out that, There can be no doubt that the Cabinet decision was asserting a right to interfere in prosecuting decisions which was excessive and constitutionally improper, as well as being vague 7 The decision was promptly rescinded by the next Cabinet. The Prime Minister proclaimed that a Cabinet instruction to the Attorney General to withdraw a prosecution was unconstitutional, subversive of the administration of justice and derogatory to the office of the Attorney General 8. In 1925, Viscount Simon, Attorney General of England made this statement: I understand the duty of the Attorney General to be this. He should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that he shall prosecute. His first duty is to see that no one is prosecuted with all the majesty of the law unless the Attorney General, as head of the Bar, is satisfied that the case for prosecution lies against him. He should receive orders from nobody. 9 The relationship of the Attorney General to government and the legitimate role or influence of government in prosecuting decisions remains controversial in the United Kingdom as is reflected in the recent decision of the Queens Bench in the Queen on the 5 Ibid 6 ECS Wade & AW Bradley Constitutional and Administrative Law (1985) as above, HC. Debates (UK) Vol. 179, cols Dec quoted by BA Macfarlane n 4 above, JLIJ Edwards The Law Officers of the Crown (1964) 215, , quoted by BA MacFarlane n 4 above, 8-9.

4 4 Application of Corner House Research and Campaign Against Arms Trade v The Director of the Serious Fraud Office. 10 In that case the Court found that in suspending the investigation of a case of corruption, the Director of the Serious Fraud Office had submitted too readily to a threat to the legal system and rule of law. 11 The Court acknowledged that the government had made it clear that the decision was for the Director but commented that the vigorous way in which the Government had asserted its views on the matter had made it more difficult for the Director to demonstrate that he had, indeed, exercised his discretion independently. 12 The general proposition has received a degree of acceptance in Canada as a recognised constitutional convention. In 1968 Chief Justice McRuer said, [The Attorney General] must be answerable to the Legislature and it is better that he be answerable as a Minister of the Crown. Notwithstanding that this is so, he must of necessity occupy a different position politically from all other Ministers of the Crown. As the Queen s Attorney he occupies an office with judicial attributes and in that office he is responsible to the Queen and not responsible to the Government. He must decide when to prosecute and when to discontinue a prosecution. In making such decisions he is not under the jurisdiction of the Cabinet nor should such decision be influenced by political considerations. They are decisions made as a Queen s Attorney, not as member of the government of the day. 13 In 1977, Commonwealth Law Ministers at a Conference in Winnipeg, Manitoba, Canada, issued a Communiqué, which, in part, and under the heading Modern Role of the Attorney General, stated: In recent years, both outside and within the Commonwealth, public attention has frequently focussed on the function of law enforcement. Ministers endorsed the principles already observed in their jurisdictions that the discretion in these matters should also be exercised in accordance with wide considerations of the public interest, and without regard to considerations of a party political nature, and that it should be free from any direction or control whatsoever. They considered, however, that the maintenance of these principles depended ultimately upon the 10 [2008] EWHC 714 (Admin). And see Attorney general's prosecution role may be curtailed The Guardian 29 October 2007 available at 11 EWHC As above See BA MacFarlane n 4 above,.8-9.

5 5 unimpeachable integrity of the holder of the office whatever the precise constitutional arrangements in the State concerned. 14 The need for strong, independent and impartial prosecutorial authorities for effective maintenance of the rule of law and human rights standards, in 1990, received great recognition when the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, adopted Guidelines on the Role of Prosecutors to assist Member States in their tasks of serving and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings. 15 The document provides 24 Guidelines covering the following areas: qualifications, selection and training; status and conditions of service; freedom of expression and association; role in criminal proceedings; discretionary functions; alternatives to prosecution; relations with other government agencies or institutions; disciplinary proceedings; and observance of the Guidelines. The last preambular paragraph states that the Guidelines: Should be respected and taken into account by Governments within the framework of their national legislation and practice, and should be brought to the attention of prosecutors, as well as other persons, such as judges, lawyers, members of the executive and the legislature and the public in general. The adoption of the Guidelines by the United Nations is of great significance because it provides a standard by which national legislation and practice can be measured with respect to independence of prosecuting authorities. Another event of great significance was the establishment of the International Association of Prosecutors in June 1995 at the United Nations offices in Vienna, which was formally inaugurated in September 1996 at its first General Meeting in Budapest 16. One of the most important objects of the Association identified in its Constitution is to: Promote and enhance those standards and principles which are generally recognised internationally as necessary for the proper and independent prosecution of offences See above, http: 17 Article 2.3 of the Constitution.

6 6 On 23 April 1999 the Association adopted Standards of Professional Responsibility and Statement of Essential Duties and Rights of Prosecutors. 18 The Standards deal with important matters such as professional conduct; independence, impartiality; role in criminal proceedings; co-operation and empowerment. The Foreword, in part, states that the Statement will serve as an international benchmark for the conduct of individual prosecutors and prosecution services. We intend that this should not simply be a bold statement but rather a working document for use by prosecution services to develop and reinforce their own standards. So, it will be appreciated that internationally, in recent years, the importance of safeguarding the independence of prosecuting authorities has come to the fore. However, although it is all very well to appreciate the importance of the independence of prosecuting authorities, the question arises: How do we ensure this independence and reassure the community that the prosecutor functions independently of government, the police, regulators and victims and the family of victims? It has been observed that There are many paths to prosecutorial independence. Some countries have chosen, with varying degrees of success, a legislatively based structural model. That approach has in some cases led to questions concerning public accountability, if not overzealousness, on the part of the prosecuting authority. In the end, each nation needs to develop an approach to independence that makes sense in the context of its own legislative and constitutional framework, as well as traditions, practices and its legal systems. 19 To this one must add that that a country s legal structure alone does not guarantee independence - a whole culture of the rule of law will have a bearing on the independence of prosecuting authorities. While recognising the need for the independence of prosecuting authorities, it is also recognised that, in order to achieve the goal of the effective maintenance of the rule of law and human rights standards, the prosecuting authority has to be accountable. A brief note on accountability is, therefore, relevant here. 18 As above. 19 BA MacFarlane n 4 above, 6.

7 Accountability It has been observed that The level of responsibility which a Prosecution Service has within a criminal justice system and the continuation of the freedom which a prosecutor must have to maintain that responsibility requires the prosecutor to be accountable for the way in which the prosecutorial discretion is exercised. 20 The Prosecutor is accountable to the interested parties : the courts, the community, the community representatives, Parliament, victims, police and the accused. 21 Various mechanisms for ensuring accountability are employed from country to country. For instance, in jurisdictions where an Attorney General is a political appointee (and perhaps a member of the Cabinet) and has some residual power to undertake prosecutions, or take responsibility in Parliament for prosecutions, the law may make the Director of Public Prosecutions accountable to the Attorney General. The Director of Public Prosecutions may have to provide an annual report to the Attorney General or consult him or her with respect to matters concerning the Director s functions. The Director may also be subject to the directions or guidelines of the Attorney General. 22 The directions of the Attorney General may be required to be in writing and published in the Gazette. 23 It should be noted in this context that the relationship between the Attorney General and the Director of Public Prosecutions is of crucial importance. A relationship of confrontation or mistrust is unhelpful, to say the least; but any relationship or understanding should also keep in mind the need to avoid the risk of criticism of political closeness. 24 The community, Parliament, police and victims need to understand why particular decisions have been made. The explanation of reasons for a particular decision will go a long way to providing transparency in the exercise of the discretion and will 20 D Bugg, n 3 above, As above and also see section 7 of the Director of Public Prosecutions (Commonwealth) 1983 of Australia. 22 Section 8 of the Director of Public Prosecutions Act (Commonwealth) 1983 of Australia; Section 3(1) of Prosecution of Offences Act 1985 of England; Sections 2,3,4,5, and 20 of National Prosecuting Act 1998 of South Africa. 23 Section 8 of Director of Public Prosecutions Act (Commonwealth) 1983 of Australia. 24 D Bugg n 3 above, 7

8 8 overcome complaints of secrecy. Perhaps one of the greatest innovations in this area is the adoption of prosecutorial guidelines. 25 Although the United Nations Guidelines on the Role of Prosecutors do not recognise the need for accountability of prosecutors explicitly, they do not expect prosecutors to work in isolation. Thus Guideline 20 emphasises the need for cooperation between the prosecuting authority and other government institutions. It says: In order to ensure fairness and effectiveness of prosecution, prosecutors shall strive to cooperate with the police, the courts, the legal profession, public defenders and other government agencies or institutions. 26 And, Guideline 13(d) prosecutorial decisions to take social conditions into account: In performance of their duties, prosecutors shall consider the views of and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. 27 The Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors adopted by the Association of Prosecutors, also contain a statement on co-operation which is in the following terms: In order to ensure the fairness and effectiveness of prosecutions, prosecutors shall: cooperate with the police, the courts, the legal profession, defence counsel, public defenders and other government agencies, whether nationally or internationally The Independence of Prosecuting Authorities: The Malawian Experience The current Constitution of the Republic Malawi was adopted in May The Constitution was drafted against the background of a long political and constitutional history. It will, therefore, be useful to provide a little historical background for us to be 25 In Australia Prosecutorial Guidelines were settled in 1989/90, and also see D Damian n 3 above, UN Guidelines on the Role of Prosecutors. 27 as above. 28 Standards of Professional responsibility and Statement of the essential duties and rights of Prosecutors, statement number 5. ( This foot note is incomplete. It doesn t provide the source of the quotation}

9 9 able to reflect on the nation s experience with respect to the independence of prosecuting authorities. Malawi was a British Protectorate from 1891 until it gained independence in In 1966 Malawi became a republic. The Republic became a one-party state and remained so until 1993 when, in a referendum, Malawians voted in favour of multiparty democracy. On 18 May 1994, multiparty elections were held, and a new constitution was adopted. 3.1 The Colonial Period What is now Malawi was proclaimed a British Protectorate by the Colonial Office in London on 14 th May Between that date and 1907 the country was called British Central Africa. During that time, the Country s constitutional order was based on the Africa Order-in-Council of However, on 11 August 1902, a new and separate Constitution for British Central Africa came into force. This was the British Central Africa Order-in-Council of 1902, and for all practical purposes, it was the first written constitution for Malawi. 29 The most important feature of this constitution is that it embodied the essence of the concept of separation of powers. It created, for the first time, an administration headed by the Commissioner and a Court of Record or High Court. 30 The High Court had full jurisdiction, civil and criminal, over persons and over all matters in the Protectorate. The Court would exercise its civil and criminal jurisdiction, so far as circumstances admit, in accordance with the substance of the law for the time being in force in England and with the powers vested and according to the procedure and practice observed by and before courts of justice and justices of the peace in England, except so far as may be otherwise provided by law. 31 The Secretary of State or the Commissioner subject to the directions of the Secretary of State, had authority to appoint public officers. The Commissioner had authority, upon sufficient cause to him appearing, to suspend a public officer from duty M Chigawa Fundamental Values of the Malawi Constitution. (March 2006). (Again this footnote is incomplete. In the reference section you say it is unpublished. What is it that is unpublished; an address, a student dissertation etc?) 30 See Articles 4 and 15 of the British Central Africa Order-in-Council, See Article 15(2) of the above 32 See Article 10(1) and (2) of the above

10 10 The next stage in Malawi s constitutional development came in 1907 when the Nyasaland Order-in-Council was adopted. 33 Under this constitution, the name of the Protectorate changed from British Central Africa to Nyasaland 34. The concept of the separation of powers was carried a step further with the creation of a Legislative Council consisting of the Governor and at least two other persons. 35 This body was given authority to legislate for the Protectorate. However, in doing so, it had to observe any conditions, provisions and limitations prescribed by any instrument under His Majesty s Sign Manual and Signet. Moreover, the Governor was given the right of veto in the making and passing of such Ordinances. 36 The Governor had authority to appoint public officers who would hold their offices during His Majesty s pleasure. 37 For this period the law provided for neither the independence of the prosecution authority nor its security of tenure. The position was much as it was in England and Wales. A Director of Public Prosecutions appointed under the Criminal Procedure Code, was subject to the superintendence of the Attorney General, whose office was also not created in the Constitution. In practice, the majority of the cases were instituted by the police. 39 Apart from minor constitutional amendments and changes in representation, the constitutional order of 1907 remained until 1953 when the Federation of Rhodesia and Nyasaland was imposed. The federal order was opposed by the people of Nyasaland until In that year, the Lancaster House Constitutional Conference gave Nyasaland a responsible government. This paved the way for eventual self-government in February 1963 and independence from the United Kingdom on 6 July The position with regard to prosecution arrangements remained as it was under the 1907 Order in Council through the Federal Period The Period The first and main order was adopted on 6 th July There was another the Nyasaland Order-in-Council (No. 2) which was adopted on 21 st December See M Chigawa n 29 above. 34 See Article 11 of the Nyasaland order in Council, See Article 11 of the above. 36 See Article 11 of the above. 37 See Article 11 of the above. 38 The Code is substantially the same as the Criminal Procedure and Evidence Code 1968 currently in force. See Section inclusive. 39 ECS Wade & AW Bradley n 6 above,

11 11 On attainment of independence, a new constitution came into force (1964) and retained the three organs of the state, the executive, the legislature and the judiciary. The Queen of England remained Head of State but the executive organ was headed by the Prime Minister. One of the most important features of this constitution is that it created the constitutional office of Director of Public Prosecutions, 40 which was to be a public office. The Director was vested with power to institute and undertake criminal proceedings against any person before any court, other than a court martial, to take over and continue any criminal proceedings instituted by himself or another person; and to discontinue any proceedings instituted by him or another person. 41 These powers could be exercised by persons subordinate to the Director. 42 However, the power to take over proceedings, or to discontinue proceedings, could be exercised only by the Director personally. 43 In exercise of the power vested in his office, the Director was all times subject to the general or special directions of the Attorney General, provided that where the Attorney General was not a Minister, the Minister responsible for the administration of justice might at any time require a specified case or class of case to be submitted to him for the purpose of giving a direction as to whether or not criminal proceedings be instituted or discontinued. 44 This provision violated the independence of the Director the Minister would exercise the discretion to prosecute or not prosecute that should be left to the Director. It is also significant to note that, although the Constitution vested the authority to appoint or remove the Director in the Governor-General, 45 it did not define the tenure of office for the Director and did not specify the grounds for removal from office. This suggests that the Director held the office during the pleasure of the Governor-General. It is submitted that the lack of specified grounds for removal limited to incompetence, misconduct and incapacity, compromised the independence of the Director. However, the Constitution prescribed a high standard of qualification for appointment - the qualifications were the same as those for appointment as a judge Section 70(1). 41 Section 70(2)(a), (b) and (c) of the Constitution of Section 70(3) of the Constitution of Section 70(4) of the above. 44 Section 70(6) of the above. 45 Section 96(1) of the above. 46 Section 96(2) of the above.

12 12 In July 1965, the Prime Minister announced that Malawi would become a republic in He appointed a Constitutional Committee which came up with draft proposals for the next stage of constitutional development. These constitutional proposals were based on three primary considerations. The first one was that in African traditional systems, it was not usual to have one leader with purely formal and ceremonial powers and another leader with real executive authority. This meant, in effect, that the new constitution would vest the powers of Head of State and Head of Government in Malawi in one person. The second consideration was that an elected executive president would strengthen the democratic and representative nature of the government of Malawi. The third concerned the need for a strong executive leader who should have such constitutional powers to ensure unity. The Committee noted that: There is need in a country comparatively underdeveloped and inexperienced in nation-hood for a form of government which will afford the necessary degree of unity, resolution and stability to permit the maximum fulfilment of the country s human and physical resources in the shortest period of time. 48 The Committee further recommended that the republican constitution should not contain a Bill of Rights. It was observed that constitutional provisions on human rights and fundamental freedoms tend to generate conflict and tension between the executive and the judiciary. 49 The draft proposals for the republican constitution were presented to, and adopted by, the Annual Convention of the Malawi Congress Party (the party that had swept the Nation to independence) in October They became a framework for a constitutional order that would remain in force for nearly a generation to come The period between On 6 July 1966, a new Republican Constitution came into force. It retained the three organs of the state the executive, the legislature and the judiciary. However, the main 47 M Chigawa n 29 above. 48 Proposals for the Republican Constitution Malawi White Paper No quoted by M Chigawa n 29 above, M Chigawa above 50 As above.

13 13 theme that ran through the constitution was that of a strong executive authority that was vested in the presiden. Section 8(i) was in the following terms: There shall be a president who shall be the Head of State, the supreme executive authority of the Republic and Commander-in-Chief of the Armed Forces. (emphasis added) Among other powers, the President had power to constitute offices for the Republic, make appointments to any such office and terminate any such appointment. Section 8(3) secured the President s free rein in the following terms: Except as may otherwise be provided by an Act of Parliament, in the exercise of his functions the President shall act on his own discretion and shall not be obliged to follow advice tendered by any other person. The role of the Cabinet was to advise the President with respect to policies of the Government and other matters that the President referred to them. The President was at liberty to assign to himself any responsibility for any business, including the administration of any department of the Government. 51 The concentration of power in the President was in practice underscored by the fact that the Constitution declared the State President to be President for life. 52 The Constitution preserved the office of Director of Public Prosecutions. 53 The provisions of the Constitution with respect to the appointment and powers of the Director, 54 and the authority of the Attorney General and the Minister responsible for the administration of justice in relation to the Director, 55 were in exactly the same terms as those of the 1964 Constitution. The authority to appoint or remove the Director was vested in the President. 56 The provision relating to qualification for appointment was the same as that in the 1964 Constitution. 57 The 1966 Constitution, like the 1964 one, provided no grounds for the removal of the Director. Again it may be argued here, that by failing to provide for 51 Section 54 of the 1966 Malawi Constitution. 52 Section Section 58(1).. 54 See Sections Section 58(6) of the 1966 Constitution. 56 Section 88(1) of the above. 57 Section 88(2) of the above..

14 14 the tenure of the office of the Director and the grounds for removal, the Constitution did not guarantee the independence of the Director, especially in the face of an executive President who held office under a Constitution that specifically concentrated power in his hands. 58 The position of the Director was rendered even less independent by the constitutional provision that allowed the President to assign to himself responsibility for any government department. 59 The President would assign to himself as it suited him the Ministry of Justice, and he would use his position as such to introduce into Parliament legislation that would limit the discretion of the prosecuting authorities. This position, as events would show, was a serious compromise of the independence of the Director of Public Prosecutions. The courts of Malawi then operated under a dual network, the High Court and Traditional Court systems, each having its own hierarchy of appeals exclusive of the other system. Although these bodies were totally divorced from one another, in general, with the exception of customary law, they administered the same law. The separation was effected by the Local Courts (Amendment) Act, 1969, which in addition to severing the two systems, increased the jurisdiction of the Local Courts (as they were then known). Up to this time there had been a system of appeals from the Local Courts to the High Court and on to the Supreme Court of Appeal. 60 The Traditional Courts were established by the Minister responsible for the administration of justice, as he saw fit, by a warrant, and he determined the jurisdiction of the Court in the warrant. 61 The jurisdiction extended to criminal cases where the defendant was an African. The appearance of legal practitioners was expressly forbidden except where it was authorised by the Minister by written order. 62 Perhaps one of the momentous events with respect to the Traditional Courts was the creation of the Regional Traditional Courts in The background is very important. In 1969 a series of murders took place in the City of Blantyre ( the Chilobwe Murders ). Some 27 or so people were killed in cold blood. Rumours were rife that the Government was responsible for the murders. The Government was determined to bring the culprits to book and clear its name. The police mounted a 58 Section 58(3) of the above.. 59 Section 54 of the above.. 60 D Newman Criminal Procedure and Evidence in Malawi. (1982) Section 3(1) of the Traditional Court Act (Cap. 3:03 of the Laws of Malawi). 62 Section 24(1) of the above.

15 15 thorough investigation and arrested one person. They brought him before the High Court. At the close of the State s case, the defence submitted that there was no case to answer, and the Court ruled that there was no case to answer. This incensed the State President and the Government. The President made a statement to the effect that if the judge had any conscience, he should resign. The judge resigned and all his brother judges resigned in solidarity. The State President and his Government were clearly of the view that the expatriate (European) judges were frustrating the Government because their notions of justice were not consistent with the African notions of justice. 63 In that spirit the Local Courts (Amendment) Bill, 1969 was passed and in 1970 Regional Traditional Courts were established. The importance of these courts can be measured by the fact that they had jurisdiction to hear all homicide and treason cases involving Africans. 64 Each Regional Traditional Court comprised three traditional chiefs, one traditional court chairman, who was also a chief and one lawyer who ordinarily sat as a Resident Magistrate. Rules of procedure in those Courts were made under the Traditional Courts Act. 65 Prosecutions were conducted by a police prosecutor, but no legal representation was permitted at all, even in respect of the most serious offences. 66 Also there were no restrictions on the Courts sentencing powers. 67 The decision whether a case should be heard by a subordinate Court (under the High Court system) or Traditional Court was made by a police prosecutor, who conducted prosecutions on behalf of the State in all Traditional Courts and in most Magistrate Court proceedings. 68 In respect of the most serious offences, which were to be tried by the High Court or Regional Traditional Courts, the Attorney General or Chief Public Prosecutor (Director of Public Prosecutions) would select the court of trial. 69 In any event, the accused had no right to elect in which court, or court system, he wished the trial to take place. The effect of the creation of the Regional Traditional Courts with their exclusive criminal jurisdiction over serious offences including homicide and treason, Malawi Hansard Report of Proceedings of the Seventh Session of Parliament (1969) See Regional Traditional Courts (Criminal Jurisdiction) Order. 65 Section 40 of Traditional Courts Act (Cap. 3:03 of the Laws of Malawi) 66 Section 24(1) of the Traditional Courts Act. 67 Sections of the above. 68 D Newman n 60 above,.7 69 As above. 70 Regional Traditional Courts (Criminal Jurisdiction) Order.

16 16 and offences against the authority of the Government was that all homicide and treason cases involving Africans during the period 1966 to 1994 were tried by Traditional Courts. Considering that, the Courts were clearly designed to administer a form of justice that was acceptable to the Government, the majority of the judges on the Court were lay, legal representation was excluded, and the prosecutor was a police officer subject to superior orders, and a Government dominated by a strong executive President, it is hard to say that the prosecuting authorities were independent. The system was clearly designed to allow prosecution decisions to be made in a manner that suited the Government. The legal regime left little room for the exercise of independence by the prosecuting authority, much less so when you consider that for most of his 31-year rule, the first President assigned the Ministry of Justice to himself. Such is the background against which the present Constitution of the Republic of Malawi (1994) was drafted The Experience under the 1994 Constitution For 30 years Malawi was ruled by a one-party Government led by Dr. Banda. However in 1993 pressure for political change from within and without mounted and the Government was compelled to hold a national referendum to determine the question whether the nation should adopt a multiparty system of government or remain oneparty. On 14 June 1993 the majority of the electorate voted for a multiparty system of the government. On 18 May 1994 a provisional Constitution was adopted for 12 months. 71 In May 1995 the Provisional Constitution was adopted with amendments The Constitutional Framework The office of a Director of Public Prosecutions is established by section 99 of the Constitution which provides as follows: (1) There shall be a Director of Public Prosecutions, whose office shall be a public office. (2) The Director of Public Prosecutions shall have power in any criminal case in which he or she considers it desirable so to do. (a) to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person; 71 See Section 212(1) of the 1994 Constitution.

17 17 (b) to take over and continue any criminal proceedings which have been instituted or undertaken by any other person or authority: and; (c) subject to subsection 5, to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority. (3) Subject to Section 101(2), the powers conferred on the Director of Public Prosecutions by subsection (2)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority and whenever exercised, reasons for the exercise shall be provided to the Legal Affairs Committee of the National Assembly within ten days: Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court. (4) For the purposes of this section, any appeal from any judgment in any criminal proceedings before any court, or any case stated or question of law reserved to any other court for the purpose of any such proceedings, shall be deemed to be part of those proceedings. (5) The Director of Public Prosecutions shall not exercise the power under subsection (2)(c) to discontinue proceedings with respect to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person. 72 The Constitution then provides that the Director of Public Prosecutions should exercise his or her authority independent of the direction and control of any authority or person. 73 This is clearly intended to exclude, principally, political, and generally, any other external influence on the Director in the exercise of his or her prosecutorial discretion. The Director s independence is further reinforced by the constitutional provision which secures the tenure of office for the Director by guaranteeing him or her a term of office of five years subject to re-appointment, 74 and limits the grounds of removal from office of the Director to incompetence, being compromised in the exercise of the duties of the office and incapacity Emphasis added. 73 Section 101(2) of the Constitution of 1994 as it was drafted in Section 102(1) of the Constitution of Section 102(2) of the above.

18 18 In addition to independence of the office of the Director, the Constitution also provides for its accountability. The Director is made directly accountable to the Legal Affairs Committee of the National Assembly for the exercise of his powers in general, 76 and specifically for the exercise of the power to take over and continue proceedings or discontinue proceedings. 77 It may be observed, however, that the Constitution does not define the method of accountability. The Constitution confers power on the Legal Affairs Committee of Parliament to summon the Director to appear before it. Does it mean that the accountability depends on the Legal Affairs Committee exercising its power to summon? It is submitted that the provision is insufficient to ensure accountability. A provision requiring the Director to lay before the Committee, at regular intervals, a report covering broadly defined requirements, would ensure greater accountability. It may also be argued that the power to summon may be exercised in a capricious manner, considering that party politics may be at work in the Committee. Arguably the Constitution also seeks to ensure accountability by making the Director subject to the general or special directions of the Attorney General. In Malawi, in terms of the Constitution, the Attorney General is the principal legal advisor to the Government. 78 The office of the Attorney General may either be the office of a Minister or may be a public office. When Government is sued, it is sued in the name of the Attorney General; when it sues, it also sues in the name of Attorney General. The Constitution does not vest any authority in the Attorney General to prosecute crimes. Section 101(2) which, as originally drafted in 1994, provided that the Director should exercise the powers conferred on his office independent of the direction and control of any authority or person, was amended in 1997 to make the Director, in the exercise of his powers, subject to the general or special directions of the Attorney General. 79 The provision raises the question why it should be necessary to subject the Director to the directions of the Attorney General, when, in fact, the Director is directly accountable to Parliament. It is easy to appreciate such a provision in a jurisdiction 76 Section 100(2)(a) of the above. 77 Section 99(3) of the above. 78 Section 98(1) of the above. 79 Section 101(2) of the the above.

19 19 such as England 80 and Australia 81, where it is the Attorney General who is answerable to Parliament for the exercise by the Director of authority vested in the office of the Director. In 1979 Sir Michael Havers, Attorney General of England, explained the position thus: My responsibility for superintendence of the duties of the Director does not require me to exercise a day-to-day control and specific approval of every decision he takes. The Director makes many decisions in the course of his duties which he does not refer to me but nevertheless I am still responsible for his actions in the sense that I am answerable in the House for what he does. Superintendence means that I must have regard to the overall prosecution policy which he pursues. My relationship is such that I require to be told in advance of the major, difficult, and from the public interest point of view, the more important matters so that should the need arise I am in the position to exercise my ultimate power of direction. 82 The provision in Malawi also raises the question of the nature of the directions that the Attorney General may give to the Director. Does the Attorney General have the authority to direct the Director as to how the Director exercises the prosecutorial discretion? Ultimately who is to decide whether to prosecute or not prosecute in a particular matter? It is simple in a jurisdiction where the Attorney General has express power to prosecute and takes responsibility for the exercise of authority, such as Australia. 83 The High Court in Malawi has decided that the Attorney General has no authority to appear and conduct a criminal prosecution under the Constitution because that is the constitutional function of the Director of Public Prosecutions. 84 The Court s view appears to be consistent with the general scheme of the Constitution whose definition of the functions of the Attorney General and the Director does not confer on the Attorney General any prosecutorial powers. 85 It may also be argued that on the view taken by the Court, there is no justification for the power of the Attorney General to issue directions to the Director 80 Section 9 of the Prosecution of offences Act, 1985 [England]. 81 Section 33 of Director of Public Prosecutions Act (Commonwealth) [Australia]. 82 House of Commons Debates 13 December 1979, quoted by BA MacFarlane n 4 above, Section 10(1) of the Director of Public Prosecutions Act (Commonwealth) 1983 [Australia]. 84 Dr. Cassim Chilumpha vs. Yusufu Matumula & Rashid Nembo, Misc. Criminal Application No 228 of 2006 (unreported). 85 Section 98 of the 1994 Constitution.

20 20 regarding prosecutorial decisions in individual cases. In any case, the provision has the potential to create tension between the Director and the Attorney General where they do not agree. The Attorney General s power to issue directions is also worrisome when you consider that the Attorney General may be a Cabinet Minister. 86 Directions may be issued that are, in fact, Cabinet directives. The potential for abuse of the power of the Attorney General to issue directions to the Director is increased by the fact that the provision does not indicate the nature of directions that the Attorney General may issue. The scheme adopted in some jurisdictions of defining the nature of directions that may be given, although granting a general power, is safer. In Australia the Director of Public Prosecutions is subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives or furnishes to the Director by instrument in writing. These directions or guidelines relate to the circumstances in which the Director should institute or carry on prosecutions of offences ; or circumstances in which undertakings may be given to persons by the Director such as directions not to prosecute etc. 87 A further safeguard against abuse in Australia is that every direction or guideline issued by the Attorney General must be published in the Gazette and also laid before Parliament. 88 This ensures that the Attorney General is accountable to Parliament for every direction or guideline he issues to the Director. It does not depend on Parliament seeing it fit to summon the Attorney General. It may be further argued that if it is unavoidable that the Director be accountable to the Attorney General then the arrangement should be less invasive of prosecutorial independence than is the case at present. Rather than have the provision that gives the Attorney General power to issue directions to the Director, for example, the constitution might merely provide for consultation between the Attorney General and the Director. Such a provision would preserve the decisional independence of the Director while permitting the Attorney General the opportunity to share matters of public 86 Section 98(5) of the above.. 87 Section 8(1) and (2) of the Director of Public Prosecutions Act (Commonwealth) Section 8(40 of the above.

21 21 interest with the Director, of which the Director must be well informed, as the Attorney General is naturally close to Cabinet, which by convention he may attend by invitation if he is not a Cabinet Minister. Indeed the need for the Director to consult colleagues (where the Attorney General has power to carry out criminal prosecutions, the Attorney General) is well recognised. Hartley Shawcross, in 1951, put it thus: I think the true doctrine is that it is the duty of an Attorney General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy. In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney General, and he is not to be put, and is not put, under pressure by his colleagues in this matter. Nor, of course, can the Attorney General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad issue sense that I have indicated, affect government in the abstract arise, it is the Attorney General, applying his judicial mind, who has to be the sole judge of those considerations. 89 Thus in the context of Malawi, where the Attorney General does not have authority to prosecute although it may be useful for the Director to consult the Attorney General, ultimately, the discretion as to whether to prosecute or not should be exercised by the Director. Arguably, a relationship of mere consultation to assist the Director of Public Prosecutions in determining the public interest would enhance the independence of the Director more than a relationship of directions. It should be noted, however, that the current Malawi Constitution requires the Director to give reasons to the Legal Affairs Committee of the National Assembly, within 10 days, for his exercise of the powers to take over and continue criminal proceedings instituted or undertaken by any other person or authority, or discontinuing 89 House of Commons Debates (UK) January 1951 quoted by BA MacFarlane n 4 above.

22 22 proceedings instituted by himself or someone else. It also provides that a person other than the Director who has instituted proceedings may withdraw proceedings only with the leave of the Court. The Constitution allows the Director to delegate his powers to other officers in the public service, 90 or other legally qualified persons acting on his instructions. 91 The Director is accountable to the Legal Affairs Committee of the National Assembly for the exercise of the powers vested in his office. 92 The authority to appoint the Director is vested in the President subject to confirmation by the public appointment of Parliament. 93 The person to be appointed must satisfy requirements as to competence of the person so appointed to perform the duties of that office and as to capacity of a person to pursue prosecutions independently Police Prosecutors Although at the constitutional level it is the Director of Public Prosecutions who has ultimate responsibility for Prosecutions in Malawi, 95 there are other persons that are vested with authority to prosecute crimes in Malawi. The Minister responsible for the administration of justice has power to appoint persons designated as public prosecutors. 96 The Director of Public Prosecutions may also appoint any counsel or person employed in the public service as a public prosecutor for the purpose of any case. 97 These public prosecutors prosecute subject to the directions of the Director. 98 These public prosecutors also appear and plead without written authority before any court where a case of which they have charge is prosecuted. 99 A private person may also conduct a prosecution with the permission of the Court. 100 Currently there are only 26 lawyers and eight paralegal officers under the office of the Director of Public Prosecutions, when, in fact, the Directorate requires a 90 Section 100(1)(a). of the Constitution of Section 100(1)(b). of the above. 92 Section 100(2)(a). of the above. 93 Section 101(1). of the above. 94 Section 101(1). of the above. 95 Section 99(2). of the above. 96 Section 79(1) of the Criminal Procedure and Evidence Code. [cap.8:01 of the Laws of Malawi]. 97 Section 79(2) of the above. 98 Section 79(3) of the above. 99 Section 80 of the above. 100 Section 82(2) of the above.