Unpacking the Proposed Constitutional Amendments . . . Appointment and Removal of the Prosecutor General Clause

Source: 18 February 2020Democracy, Legislation

Who is the Prosecutor General and what does he do?

Kumbirai Hodzi was sworn in by the President as the Prosecutor General on 23 January 2019 after the forced resignation of his predecessor Ray Goba. Hodzi had previously been Deputy Attorney General. You can read about some of the controversy surrounding Hodzi’s appointment here.

The Prosecutor General:

  • is a public office, but is separate to the civil service
  • must be qualified in the same way as a Supreme Court judge
  • is appointed for a period of 6 years
  • is remunerated on an Act of Parliament
  • is commissioned to direct the Commissioner-General of Police to investigate and report to him on anything which, in the Prosecutor-General’s opinion, relates to an offence or alleged or suspected offence, and the Commissioner-General of Police must comply with that direction.

What does the Constitution say about the appointment and removal of the Prosecutor General?

The constitution currently states that the Prosecutor-General must be appointed in the same way as a judge – i.e. by: advertising the position; inviting the President and members of the public to nominate candidates; conducting public interviews of candidates; and preparing a list of three qualified nominees to be submitted to the President from which the President makes his/her selection. (See our comments on the clauses affecting appointment and retirement of judges here).

In addition, the Prosecutor General can also only be removed following the same procedure as removing a judge:

  • on the grounds of incapacity, gross incompetence or gross misconduct.
  • upon appointment of a tribunal to investigate the incapacity, incompetence or misconduct (brought to attention by the President himself or on advice from the JSC).
  • the tribunal must consist of at least 3 members including a judge of local or international esteem and at least one person from a list of 3 or more recommended legal practitioners submitted by the Law Society.
  • the President is obliged to act on the recommendation of the Tribunal.

What will change if the amendment is approved?

The proposed constitutional amendments will do away with the need to consult the public on the Prosecutor General’s appointment through public interviews (although the President will still be required to consult the JSC).

On dismissing the Prosecutor General, the amendment would allow the President to appoint a tribunal to investigate the incapacity, gross incompetence or serious misconduct (this is a change from ‘gross misconduct’) of the PG without needing to consult the JSC.

The tribunal would also not need to include a legal practitioner recommended by the Law Society.

The President will not be obliged to act on the recommendation of the tribunal when deciding whether or not to dismiss the Prosecutor-General. He will be able to do so even if the tribunal finds there are no grounds for dismissal.

Why does it matter?

If approved, the amendment would give the President more personal power to appoint and dismiss the Prosecutor General, thus threatening the independence of the position.

Lawyer and academic David Hofisi has said that the maintenance of separation between the executive presidency and prosecuting authorities was an important principle in the constitution making process. He comments that removing public monitoring of the PG’s appointment and dismissal, leaving that to the JSC – which itself could be compromised in terms of independence – “might possibly align future PG’s more closely with the ideology of the appointing president”.

Veritas has likewise warned that the amendments weaken the independence of the office of the Prosecutor General and “may well bring us back to the days of politically motivated prosecutions”.

Source: Kubatana