1.  Introduction

This chapter considers the role of the public prosecutor with a particular focus on Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It draws upon UK experience only to highlight some of the issues and possible reforms by way of comparative example.

The separation of powers is mostly considered in the context of the independence of the judiciary from the executive and the legislature. However, there are other legal actors who need to be insulated, wholly or partially, from executive or legislative control. These include the legal profession as a whole, and others who perform legal roles, such as the Attorney-General. To what extent should that independence also extend to the office of the public prosecutor?

In relation to the prosecutor I ask to what extent his role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? I shall also consider to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review.

In relation to the rule of law, again it could be said that all government lawyers need to act as guardians of the rule of law. That is part of their calling as lawyers, although they also have a duty to the government they serve. In this context I shall consider the extent of the prosecutor’s discretion to enforce the law and, even more significant, not to enforce the law. Finally, I shall ask whether there may be ways to structure his discretion in the interest of the rule of law.

2.  The Constitutional Setting of the Public Prosecutor

Should the public prosecutor be part of the judicial or executive branch of government, or in some way independent? Either way, how should the prosecutor be appointed? On what grounds and by whom might he be dismissed? Should his decisions be able to be reviewed or overturned by someone more connected to government, the legislature, or the executive, such as the Attorney-General or Minister of Justice? Should prosecutorial decisions be reviewed by the courts?

(p. 346) In addressing these questions it must be realized that the prosecutor’s role is complex. It requires both quasi-adjudicative skills, involved in assessing whether there is sufficient evidence to pursue a charge, as well as the need to make value judgments such as which charge to prefer, and which of a number of interests to favour. These interests include those of the victim, the general public, the state, and indeed the police. Can any structure or guidelines successfully reconcile these duties, or must they inevitably be left to the broad discretion of the prosecutor on a case-by-case basis?

On the other hand, there is a growing consensus internationally that the decision to initiate a prosecution should not be influenced, or seen to be influenced, by partisan considerations. This is because such selective enforcement of the law is seen to violate the rule of law. In addition, the setting in motion of a prosecution not only adversely affects a person’s dignity, status, and reputation, but can lead to that person’s punishment, loss of status, or even loss of freedom. Decisions of that significance to the individual should therefore patently be seen not to be driven by narrow political considerations, but only by an objective consideration of whether the person is likely to have breached the law. Such a decision should therefore best be taken by someone clearly separated from political attachment.

There is a wide spectrum internationally in the way that public prosecutors are appointed and the extent to which they are under the direction of parliament or the executive. At one end of the spectrum there is complete independence of the prosecutor. This is true not only in countries such as Italy and other civil law countries, where each prosecutor is individually independent, but also in countries such as Ireland, Israel, India, and some Canadian provinces and Australian states.

We must note here that in many civil law countries, with an inquisitorial system of criminal prosecution, the nature of the prosecutor is more like that of a judge, and the judge more like that of a prosecutor, with an active fact-finding role that is absent under an adversarial system. This kind of system is also normally accompanied by the fact that the prosecutor has little or no discretion to take into account the public interest as a ground not to prosecute. It is therefore largely in common law systems, where there is no prima facie duty to prosecute, that the question of freedom from partisan control comes into its own as prosecutorial discretion becomes a potential political tool.

Article 157(11) of the 2010 Kenyan constitution provides, that in exercising his powers, the Director of Public Prosecutions (DPP)

shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid the abuse of the legal process.

Although this discretion to take into account the public interest allows the prosecutor discretion that is not allowed in some countries, the Kenyan constitution does require prosecutorial independence. Under article 157, the DPP is nominated by the president but appointed only with the approval of the National Assembly. Article 157(10) provides that the DPP

shall not require the consent of any person or authority for the commencement of criminal prosecutions and shall not be under the direction or control of any person or authority.

Page Id: 346ReferencesConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 9 The Executive, Part 4 Other Offices, Art.157 Director of Public Prosecutions., (10) OCWMain Text, Chapter 9 The Executive, Part 4 Other Offices, Art.157 Director of Public Prosecutions., (11) OCW(p. 347) In Nigeria the constitution places the decision to prosecute firmly in the hands of the Attorney-General¹ who is appointed by the president and confirmed by the Senate, and who has broad discretion to take into account matters of public interest. In Malawi, the DPP is fully subordinate to the Attorney-General, and acts as his delegate. In Uganda the DPP is relatively independent, subject to any directions given by the Attorney-General on matters of general policy.² The Ugandan system is thus close to the English model, where there is an independent DPP, who heads the Crown Prosecution Service (and there is also a Serious Fraud Office and a Revenue and Customs Prosecution Office, each with separate directors). However, the Attorney-General has a degree of oversight (superintendence) over the prosecution service, such as the ultimate responsibility for the decision whether or not to refuse consent for prosecution on the ground of public interest, and he may direct the Prosecution Directors accordingly.

Under the UK model, the Attorney-General is a member of the government who sits in one or other house of parliament and takes the ruling party whip. So the Attorney-General is a politician, but with a difference, as he is also expected to give the government objective legal advice.

The tension between the powers of the Attorney-General and the DPP is interestingly resolved in Zambia, where the DPP himself regulates the degree of the Attorney-General’s involvement. In any case where, according to the DPP, considerations of public policy are involved, he will consult with the Attorney-General who will then decide whether to prosecute.³ The crucial point is that the judgment of whether a case involves public policy or not is fully up to the DPP.

At the extreme opposite end of the spectrum, Ghana and Sierra Leone maintain a system where the Attorney-General and the Secretary of State for Justice is the same person. Like in the UK, the person appointed to this office is a politician who sits in the legislature as a member of the ruling party, but additionally also discharges the duties of the Justice Minister. Section 64(1) of the 1991 constitution of Sierra Leone provides:

There shall be an Attorney General and Minister of Justice who shall be the principal legal adviser to the Government.

So we see that there are different models, some entirely independent and not permitted to take matters of ‘public interest’ into account, others which do permit public interest to be taken into account but otherwise leave the prosecutor free to exercise his discretion, and yet others which permit a higher official (normally the Attorney-General) to ‘superintend’ the prosecutor’s decisions.

Some argue that there is no need for the prosecutor to be completely independent, as if he were a judge. It is said that where the prosecutor lays a charge, the defendant will later have the opportunity of defence before a judge. And where the prosecutor decides not to lay a charge, he may be entitled, as we shall see later, to take into account matters of public interest, which inevitably involves the prosecutor in matters of policy, which is often best decided by the government of the day. Even where there is no oversight or Page Id: 347ReferencesConstitution of the Federal Republic of Nigeria: May 29, 1999 (as Amended to November 29, 2010) (Nigeria [ng])Ch.VI The Executive, Part I Federal Executive, (A) The President of the Federation, Art.150 Attorney-General of the Federation, (1) OCWCh.VI The Executive, Part I Federal Executive, (A) The President of the Federation, Art.150 Attorney-General of the Federation, (2) OCWConstitution of the Republic of Uganda: September 27, 1995 (as Amended to December 27, 2017) (Uganda [ug])Main Text, Ch.7 The Executive, International Relations., Art.123 Execution of treaties, conventions and agreements. OCWMain Text, Ch.7 The Executive, Declaration of a State of War., Art.124 Declaration of a state of war. OCWConstitution of the Republic of Zambia: August 2, 1991 (as Amended to May 28, 1996) (Zambia [zm])Part IV The Executive, Art.56 Director of Public Prosecutions, (7) OCW(p. 348) superintendence of an Attorney-General or equivalent over the public prosecutor, some degree of political input may be built into his role by way of the appointment process.

There has been a lively discussion recently in the UK about the Attorney-General’s role in general,⁴ arising out of doubts about the then Attorney’s advice to the government that it had the power in international law to invade Iraq. In favour of that role, it is contended that the Attorney-General, by established convention, stays at arm’s length from party politics. His role is in practice functionally independent in its day-to-day activities. Against that it is argued that, however independent and impartial the Attorney-General is in fact and practice, some of his decisions are vulnerable to being interpreted by the public as driven more by political convenience than law. This may be a matter of perception rather than fact, but is nevertheless important to the integrity of the law and the confidence of the public in the public decision-making process.

In South Africa, section 179 of the constitution establishes a prosecuting authority, headed by a National Director of Public Prosecutions, which by national legislation must exercise its functions without ‘fear, favour or prejudice’. Although the DPP is appointed by the president, section 179(6) states that ‘The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority’. The National Prosecuting Authority Act provides for the provision of certain information by the prosecuting authority to the minister and also accountability to parliament for powers, functions, and duties under the Act, including decisions regarding the institutions of prosecutions.

There has been much controversy in South Africa about whether the public prosecutor is or should be functionally independent from the president and the executive, and the extent to which the president may appoint and dismiss the prosecutor on ‘political’ grounds. The issue was engaged when President Mbeki suspended the then-DPP Vusi Pikoli.⁵ There is also litigation pending on the suspension of proceedings against President Zuma.⁶ Similarly, in Zambia (where the DPP enjoys similar constitutional protections as in South Africa) there are currently tribunal proceedings under way considering allegations against the incumbent DPP, instituted by the Zambian President Edgar Lungu. Though this is the proper procedure for holding the DPP to account, it follows a series of attempts to remove him unconstitutionally, allegedly due to his unwillingness to bow to the president’s pressure on several high-level corruption prosecutions.

Page Id: 348ReferencesCertification of the Constitution of the Republic of South Africa, 1996, Re, Judgment, Case CCT 23/96, [1996] ZACC 26, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), 6th September 1996, South Africa; Constitutional Court [CC]Constitution of the Republic of South Africa: December 16, 1996 (as Amended to February 1, 2013) (South Africa [za]) Act No 108 of 1996, Government Gazette Vol 378, No 17678, 18 December 1996Main Text, Chapter 8 Courts and Administration of Justice (ss 165-180), s.179 Prosecuting authority OCWDemocratic Alliance and ors v Acting National Director of Public Prosecutions and ors, Case No 288/11, [2012] ZASCA 15, 2012 (3) SA 486 (SCA), [2012] 2 All SA 345 (SCA), 2012 (6) BCLR 613 (SCA), 20th March 2012, South Africa; Supreme Court of Appeal [SCA]Glenister v President of the Republic of South Africa and ors, Judgment, Case CCT 48/10, [2011] ZACC 6, ILDC 1712 (ZA 2011), 2011 (3) SA 347 (CC), 2011 (7) BCLR 651 (CC), 17th March 2011, South Africa; Constitutional Court [CC] ILDCPikoli v President of South Africa, Case No 8550/09, [2009] ZAGPPHC 99, 2010 (1) SA 400 (GNP), 11th August 2009, South Africa; Gauteng; Pretoria; North Gauteng High Court [GPP-HC](p. 349) 3.  International Guidance

At the time of the drafting of the current South African constitution there was very little such guidance on an international level on the prosecutorial role, and there is still no binding convention on the subject. However, a growing amount of ‘soft law’ is now developing, especially by the United Nations and the Council of Europe, including the Council of Europe’s Venice Commission, which was formed in 1990 to assist the constitutions of the former Soviet Union. Of these, the two most important texts are the Council of Europe Recommendation Rec (2000) 19 on the Role of Public Prosecution in the Criminal Justice System, and the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors adopted by the International Association of Prosecutors on 23 April 1999.

This guidance has been drafted largely in response to the new constitutions in the countries of the former Soviet Union. Some of those countries have been tempted to place the prosecutor under the direction of the executive (partly as a reaction to the Soviet office known as Prokuratura, a seemingly independent prosecutorial authority, which was in practice wholly under the thumb of the party apparatus). However, even where this has happened, international guidance requires that the prosecutor be given functional day-to-day independence in relation to particular cases.

That is not to say that the executive branch, or even the legislature, may not have the right, and indeed the duty, to lay down general prosecutorial policy. To respect the rule of law in the sense of legal certainty, it is best that these choices about priorities be set out in a policy statement that is open to discussion and then published. Most prosecuting authorities have such policies, as can be found, for example in the prosecution policy required under the South African National Prosecution Authority Act 1998. These policies are developed in conjunction with the executive. However, as was said in the Venice Commission’s Opinion on the draft revision of the Romanian constitution, prosecution policy should be seen as general guidance, and

in no way implies that prosecutors are personally issued with specific orders in a given case. Each prosecutor retains freedom of decision. In determining how [policy] should be applied to individual cases, each prosecutor must be independent.⁷

In this respect Rec (2000) 19 of the Council of Europe provides:

Where the public prosecution is part of or subordinate to the government, states should take effective measures to guarantee that:

‘instructions not to prosecute in a specific case should, in principle, be prohibited.’

Similarly, the guidelines issued in 1999 by the International Association of Prosecutors (IAP) require that where prosecutorial discretion is permitted in a particular jurisdiction, it should be exercised independently and free from political interference.⁸

(p. 350) International opinion therefore strongly favours the notion of an independent prosecutor in relation to the decision whether or not to bring charges. In order to ensure that goal, it has also considered the issue of the appointment and dismissal of prosecutors. In its Opinion on the constitution of Hungary, the Venice Commission suggested that non-political experience should be involved in the selection process of prosecutors, and in relation to dismissal it said this:

An important element in the independence of the general prosecutor is his protection from arbitrary or politically motivated dismissal. If the government were to have the power to dismiss him at will then he could not discharge his function with the absolute independence which is essential. On the other hand to involve Parliament in the decision to dismiss might draw him into the arena of party politics which would be undesirable. The grounds for dismissal should be stated in the Constitution, eg stated misbehaviour or incapacity. A body whose membership would command public trust should investigate allegations of misbehaviour or incapacity and, if it finds the allegation proved, make a recommendation of dismissal if it considers that dismissal is justified … It would be advisable not to involve the Constitutional Court in the investigation or the dismissal procedure because it is not unlikely that there might subsequently be a legal challenge in that court to the affair, whatever its outcome. Whatever body is selected it is probably better that it be comprised of ex officio members rather than be appointed ad hoc, in order to avoid suggestions that its members have been chosen so as to obtain a particular result.⁹

Note how different this is from the situation in South Africa, where the president appoints the National Director of Prosecutions and may dismiss him on the ground, inter alia of not being a fit and proper person to hold the office, subject only to the view of parliament. Similarly in the UK the Attorney-General can be appointed or replaced simply through a Cabinet reshuffle (although the position of the public prosecutor is more secure).

4.  The Rule of Law and Public Prosecutions

5.  Judicial Review of Prosecutorial Decisions

In the 1970s in England the public interest test was examined in a case brought by a Mr Gouriet.¹² The British Post Office Union had indicated their intention to boycott all mail to and from South Africa as a protest against apartheid. Such an action was against the law, said Mr Gouriet, but he could only institute a private prosecution with the assistance of the Attorney-General (a procedure known as a relator action), who refused his consent to prosecute in the public interest. The House of Lords, then England’s highest court, held both that it was perfectly proper for the Attorney-General to apply the public interest test, and also that the scope of that test was so wide as not to be subject to review by the courts. This is because the Attorney-General should be free to take into account questions of ‘policy’ such as whether the prosecution would exacerbate an already sensitive industrial situation. Would it be effective or futile? Would it lead to political martyrdom? Would it provoke a national strike? This utilitarian weighing of political costs and benefits was not best answered by judges.

As Lord Wilberforce said:

The decisions to be made in the public interest are not such as courts are fitted or equipped to make. The very fact, that, as the present case very well shows, decisions are of the type to attract political criticism and controversy, shows that they are outside the range of discretionary problems which courts can resolve.

More recently that deferential approach of the courts has somewhat softened. The Gouriet case was partly coloured by the fact that the Attorney-General was acting under the ‘prerogative power’ which at that time could not be challenged by judicial review but which has since been held to be challengeable, at least if the power to do so is within the institutional capacity of a court.¹³ More recent cases in different jurisdictions have opened the door to judicial review of decisions not to prosecute, although on very restricted grounds. For example, in 2002 the Supreme Court of Ireland (which has an independent public prosecutor), held that the only grounds of review are those Page Id: 353ReferencesGouriet v Her Majesty's Attorney General, Gouriet v Union of Post Office Workers, [1977] UKHL 5, HL/PO/JU/4/3/1307, [1978] AC 435, [1977] 2 WLR 300, [1977] 3 All ER 70, 26th July 1977, United Kingdom; House of Lords [UKHL](p. 354) where it can be shown that the decision of the prosecutor was taken in bad faith or influenced by an improper policy or motive or where the prosecutor had abdicated his functions. It was further held that the prosecutor did not have to provide reasons for his refusal to prosecute.¹⁴

In 2003 the Supreme Court of Fiji, in Matalulu v DPP, similarly refused to uphold a challenge to a decision not to prosecute, saying:

The polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.¹⁵

Nevertheless, the Fiji court held that the power would be reviewable if it were made in excess of the prosecutor’s constitutional or statutory grant of power, when he had acted under the direction of another or in bad faith or fettered his discretion by a rigid policy. However, it was held that the decision could not be reviewed

by reference to irrelevant considerations or without regard to relevant considerations or otherwise unreasonably because of the width of the considerations to which the DPP may properly have regard in instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be reviewable for want of natural justice.

In 2006 the matter was considered in an appeal to the Privy Council, which serves as the final court of appeal for a number of Commonwealth countries, against a decision not to prosecute by the DPP of Mauritius. It cited the Matadulu case from Fiji, cited earlier, and adopted its approach entirely.

In 2008 the House of Lords itself endorsed the approach of the Fiji case, which it cited with warm approval. The case concerned the following: In December 2006 the Director of the Serious Fraud Office (the Director) decided to abandon an investigation into allegations of bribery and corruption by BAE Systems Ltd (BAE), in relation to contracts for Al-Yamamah military aircraft with the Kingdom of Saudi Arabia. The Director had yielded to a threat from Saudi officials (in particular, Prince Bandar bin Sultan bin Abdul Aziz of al-Saud) that if the investigation were to continue the Saudi government would cancel a proposed order for Eurofighter Typhoon aircraft and withdraw security and intelligence cooperation with the United Kingdom.

Both the Director and the Attorney-General had previously refused to bow to pressure from the prime minister and the foreign and defence secretaries of state to drop the investigation. The Director again held firm when the Attorney-General considered that the investigation was not justified by the available evidence. Just at the point when the trail of investigation was extended to Swiss bank accounts, the Director was persuaded to drop the case on the advice particularly of the British Ambassador to Saudi Arabia that national security (‘British lives on British streets’) would be imperilled if the threat were carried out. The Director’s decision was Page Id: 354ReferencesEviston v DPP, [2002] IESC 62, [2003] 1 ILRM 178, [2002] 3 IR 260, 31st July 2002, Ireland; Supreme CourtMatalulu v Director of Public Prosecutions, [2003] 4 LRC 712, 17th April 2003, Fiji(p. 355) challenged through judicial review by Corner House Research Ltd and the Campaign against the Arms Trade.

In the House of Lords, Lord Bingham¹⁶ began by indicating clearly that the courts should be ‘very slow to interfere’ in prosecutorial decisions outside of ‘exceptional cases’. This was because, first, respect should be accorded to the independence of the prosecutor. Secondly, the words quoted earlier from the Supreme Court of Fiji about the ‘polycentric’ character of the decision were again cited with approval.¹⁷

Explicitly guided by this highly deferential approach to the exercise of broad discretion by a prosecutor, Lord Bingham acknowledged that the discretions conferred on the Director were not unfettered, at least to the extent that:

He must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice (para 32).

Note that Lord Bingham’s list of administrative imperatives is sited firmly on the ground of judicial review known as ‘legality’. Surprisingly, it omits reference to the need to make a decision which is within the ‘range of reasonable responses’ (as the old Wednesbury¹⁸ test has now evolved).¹⁹ Nor does it address the question of the degree of scrutiny (light or heightened) that may be appropriate for a case such as this, or whether the more rigorous test of proportionality ought to be engaged. The ultimate question for the House was said simply to be:

whether in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament (para 38).

It was unanimously held that the Director had acted within his power’s lawful bounds.

A similar hand-off approach to prosecutorial discretion has been followed in three recent appeals in Singapore.²⁰

In my view, this hands-off attitude of the courts to the public interest is simply too deferential and outmoded for three reasons. First, there is no logical reason to confine the categories of review of the prosecutorial decision to those mentioned (bad faith, etc) and to exclude fundamental categories of review such as the taking into account of relevant considerations, or even unreasonableness. Second, the hands-off approach presumes that prosecutors will inevitably subordinate party or partisan interest to a wider national or public interest. With respect, experience shows the opposite, that Page Id: 355ReferencesAssociated Provincial Picture Houses Limited v Wednesbury Corporation, [1947] EWCA Civ 1, [1948] 1 KB 223, [1947] 2 All ER 680, (1947) 63 TLR 623, (1948) 112 JP 55, (1947) 45 LGR 635, (1948) LJR 190, (1947) 177 LT 641, (1948) 92 SJ 26, 10th November 1947, United Kingdom; England and Wales; Court of Appeal [EWCA]; Civil Division [EWCA Civ]Matalulu v Director of Public Prosecutions, [2003] 4 LRC 712, 17th April 2003, Fiji(p. 356) there are great pressures, whatever the formal structures of the office of prosecutor, to conflate the interest of the nation with that of the party in power. Particularly in those African nations with weak independence of the public prosecutor there is increasing pressure to sever the link with the politicians, usually based upon the experience of withdrawing prosecutions of high-level corruption cases involving individuals close to the government.²¹ There seems to be no reason why the courts should exclude themselves from scrutinizing the concept of national interest, for example, whether it permits non-prosecution on any of a number of doubtful grounds, well short of bad faith, such as economic interests, to which I have already alluded.

Third, while it may be technically correct, as is set out in the South African prosecution policy cited earlier, that ‘there is no rule of law which requires prosecution of all cases’, it is a fundamental principle of the rule of law that the law should be enforced where possible, and enforced equally. I would also contend that a utilitarian attitude towards the public interest—seeking the greatest good for the greatest number and excusing wrongdoing on the ground of a balance of convenience—sends out signals that diminish respect for legality, encourages lax policing, excuses the duty of those public officials charged with enforcing the law, encourages the lawless, creates anxieties in the lawful, and undermines a culture of legality. It also creates a sense of justified grievance on the part of the ordinary people, who are rarely treated as exceptions to the rule, yet watch with deep resentment when high officials and the masters of industry are exempt from law’s strictures.

Of course, the enforcement of law should not eschew compassion. On the contrary, the public interest might well be utilized from time to time so as to promote or protect vital interests—such as those of the terminally ill who genuinely and of their own volition wish to embark on assisted suicide, or where there is a strong likelihood that national security may be threatened by the revelations at a trial. Nor am I suggesting that courts are always well equipped to substitute their view for that of the prosecutor on what the national interest requires.

What I am suggesting is that the courts are these days familiar with ways to examine claims of national interest as they have not been in the past. The late Etienne Mureinik, one of Africa’s greatest public lawyers, said that the new South Africa had moved from a ‘culture of authority’ to a ‘culture of justification’²² and it is this culture that these days subjects most decisions of public officials to more intense scrutiny than in the days when their decisions were basically immune unless ‘grossly unreasonable’. In South Africa the fact that decisions not to prosecute are not exempt from review under any or all of the grounds of review under section 6 of the Promotion of Administrative Justice Act (PAJA) gives some hope that it may once again take the lead in this respect, as the courts have already started to do, in using the tools available to judges not to second-guess these decisions, but to probe their evidentiary basis and rationality to the limit.

(p. 357) 6.  Reasons, Guidelines, and Victims Appeals

The difficulties of adjudicating public interest may be at least partially addressed through requiring the DPP to disclose reasons for his decision, whenever he exercises the constitutional powers of the office. This approach is taken in Malawi, where section 99(3) of the constitution requires the DPP to give reasons for his decisions to the Legal Affairs Committee of Parliament, within ten days of each decision being handed down. That said, parliamentary scrutiny is not always effective. With or without parliamentary scrutiny, there is good reason why the DPP should publish his reasons to the public at large who are probably best-placed to judge what their interest entails.

As we have seen, in some countries the prosecutor issues guidelines showing the factors to be taken into account in exercising their discretion. In the UK the Attorney-General issued a protocol between herself and the prosecuting departments, confining her interference largely to matters of national security, but also requiring consultation on some sensitive matters that may systemically affect the framework of the law or operation of the criminal justice system.²³ The DPP has also set out guidelines in respect of prosecution of particular issues, such as assisted suicide, or in relation to offensive messages on the social media.²⁴ As has been said by Lord Bingham, the rule of law requires that questions of legal rights and liability be governed by law, and not by an arbitrary decision. But that does not mean that all decisions about rights and liabilities should be decided by courts or tribunals. They should however, be based on ‘stated criteria … amenable to legal challenge’.²⁵

Prosecutorial guidelines assist by laying out the ‘stated criteria’. Although there is a danger that the guidelines may fetter the discretion of the prosecutor,²⁶ discretion is thus structured, the public can better understand the rationale of selective enforcement, and the courts may well enforce them as ‘legitimate expectations’.²⁷ On the other hand, they sometimes induce rigidity by creating the impression that they have the effect of strict rules, or may be applied in such a way by the courts.²⁸

Insofar as the existence of prosecutorial discretion creates the impression of selective justice, the DPP in England has recently decided to issue a ‘Victim’s Code’, under which the DPP will provide reasons for the failure to prosecute, and also permit any victim of crime, which includes bereaved family members or other representatives, to ask the Crown Prosecution Service to look again at a case following a decision not to prosecute, or to discontinue proceedings, or to offer no evidence.²⁹ These reviews will provide a fresh examination of the evidence and circumstances of the case. This is a model that other countries may do well to emulate.

Page Id: 357ReferencesR., ex parte Manning and ex parte Manning v DPP, Case No CO/2054/99, [2000] EWHC 562 (QB), [2001] QB 330, [2000] 3 WLR 463, [2000] Inquest LR 133, [2000] Po LR 172, [2001] HRLR 3, 17th May 2000, United Kingdom; England and Wales; High Court [EWHC]; King's Bench Division [KBD](p. 358) 7.  Conclusion

With such diversity of different constitutional arrangements within Anglophone Africa, it is difficult to point to a single direction of practice. However, it is clear that there is concern to achieve prosecutorial independence and greater transparency and fairness. The area of prosecutorial discretion bristles with problems about divisions of functions that are necessary in a constitutional democracy. As there are so many interests involved, from the accused, to the victim, to the general public interest, much greater attention to institutional design and the rule of law is needed in this neglected area of constitutional discourse. In general, the constitutional principle of separation of powers is best observed where public prosecutors are separate from the political branches of government so that they can fulfil their tasks as independent guardians of the rule of law.