This brief note is intended to clear up confusion over the conduct of criminal matters under Zimbabwean law. This has become necessary in light of the current case involving the Zimbabwe Anti-Corruption Commission (ZACC) and the Minister of Higher and Tertiary Education, Professor Jonathan Moyo and his deputy, Godfre Gandawa and others. It is clear that much of the debate and confusion arises out of limited understanding of the law by most members of the public. This is an explanation of basic aspects so that the public is better informed and guided as to matters of substantive and procedural law.
I have previously expressed concern at ZACC’s apparent ineptitude in handling the matter regarding corruption at ZIMDEF, the fund administered by the Ministry of Higher and Tertiary Education, which was allegedly abused by the Minister, his Deputy and other public officers. It is regrettable that the intended prosecutions could collapse entirely on account of ZACC’s procedural shortcomings.
Substantive and Procedural Law
There are two types of law, substantive and procedural law, both of which are fundamental. Most people have avague familiarity with substantive law, but are oblivious of procedural law and its significance.
Substantive law
Substantive law consists of the actual content of law. It defines the rights and obligations of individuals. In the case of criminal law, it consists of the actual elements of the offence. Thus in the case of corruption, it defines the core elements of the offence in answer to the question: what is corruption? A criminal offence generally consists of two core elements – the physical element, namely that a person actually did the act and the mental element, namely that a person intended to do the act. The prosecution must prove both. In limited cases, there is strict liability, where only the physical element is required and the mental element is not necessary.
A defence lawyer might argue that his client did not do the act that he is accused of or that even if he did, he did not have the intention to do so. A prosecution might prove that the act was done, but might fail to prove that the accused had the intention to perform the act. A good example is where a person is accused of murder. Most lay people think a person who kills is a murderer and is often described as such in the press. This is not always an accurate description. They are surprised when that person escapes the charge of murder and is instead found guilty of culpable homicide. The reason is that while he would have killed, the prosecution might have failed to prove that he had the intention to kill which is necessary to prove murder. The defence lawyer might have shown that the killing was accidental, in which case the accused might be regarded as negligent. Instead, he would be guilty of culpable homicide/maslaughter. In some cases, the defence lawyer might even successfully demonstrate that the accused was mentally insane when he committed the act, in which case he would not be held legally responsible for his actions. Instead of jail, he might be committed to a mental institution for treatment.
Procedural law
Procedural law on the other hand, consists of the rules and processes to be followed in enforcing substantive law. This is more commonly referred to as the due process of law. This includes rules of procedure, such as the presumption of innocence, the rule against self-incrimination, rules against giving evidence under torture or duress, the rule that a person must be given an opportunity to be heard, the rule that a person must be represented by a legal practitioner of his choice, or must have access to relatives, etc. These procedural rules are very important because they ensure fairness and consistency in the legal process, whether criminal or civil or administrative. If they are not upheld, the accused person can challenge the legality of the prosecution or legal process. If it is found that procedural rules were not followed, it could have drastic consequences on the entire case.
One of the most important consequences of violating procedural rules in criminal cases is that it could lead to a permanent stay of prosecution, which means stopping the entire case against the accused. An example is when human rights’ activist Jestina Mukoko was abducted and tortured in December 2008. She challenged the lawfulness of her arrest and applied for a permanent stay of prosecution on the grounds that she had been unlawfully arrested, tortured and denied legal representation among other procedural rights violations. The Supreme Court agreed that her procedural rights had been contravened by law enforcement authorities and state security agents and ordered a permanent stay of prosecution. The entire case against her collapsed on account of procedural violations and was never prosecuted.
What emerges from this is that procedural issues are just as important as substantive issues in the conduct of criminal prosecutions. If procedural rights are violated, an accused can walk free, without prosecution. This is why it is fundamental for law enforcement agencies to ensure that they handle cases carefully and lawfully in accordance with laid down procedures, i.e. in line with due process. If they fail to do that, the entire case against the accused could collapse, no matter how guilty the accused might appear in the court of public opinion.
Defence lawyers pay particular attention to procedural issues, because they know that law enforcement agencies often make procedural errors in handling criminal matters. They might treat the accused inhumanely. They might deny them legal representation. They might deny them access to their relatives or religious counsellors. They might torture them in order to secure a confession. They might search and seize documents unlawfully, rendering the evidence tainted by illegality. If any of this happens, defence lawyers have fertile ground to challenge the lawfulness of the accused’s arrest or detention or evidence and if successful, they could stop the prosecution.
When this happens, it is often said that the accused got away on a technicality. Ordinary people might not understand why a person who seems to be guilty on the facts would get away with it in such circumstances, but that is the law and this is why the police or other law enforcement agencies must ensure strict adherence to procedural rules and rights.
Due Process in the Constitution
These procedural rules and rights are so fundamental that they are enshrined in the Constitution. Section 50 sets out the rights of arrested and detained persons, while section 53 prohibits torture, inhuman and degrading treatment. Section 57 protects the right to privacy and prohibits arbitrary search and seizure of one’s property. Section 68 and 69 also protect procedural rights to fair administrative conduct and to a fair hearing. Finally, section 70 articulates and protects rights of accused persons. These are, collectively, due process rights and they are the cornerstone of the criminal and civil justice system. Violation of any of these rights could kill the prosecution’s case, leaving the accused to walk free.
The overall point to note is that in assessing a criminal case against an accused person, it is fundamental to consider not only the substantive aspects of the offence, but also the procedural aspects in respect of how the matter is handled. Both the substantive and procedural aspects are fundamental and can have a bearing on the success or failure of a case against the accused. Most lay people are only concerned with the substantive elements of a case: did the accused person do what he is alleged to have done? They rarely pay attention to the procedural aspects of the case: did the law enforcement authorities handle the accused and the matter in accordance with due process of law? Where the substantive case against the accused is particularly strong, defence lawyers tend to focus on the procedural aspects of the matter. It is here where they often find loopholes in the conduct of the law enforcement authorities, which they use to secure freedom for their clients.
Lessons for ZACC
The lesson in this is that law enforcement authorities such as ZACC and the ZRP must ensure that they get their procedural details right. If they fail to adhere to procedural rules, they could avail easy opportunities for the accused to escape prosecution. The reason why the Constitutional Court has ordered a temporary stay of prosecution against Professor Jonathan Moyo is not because ZACC has a weak case on substantive grounds, but because he is alleging that ZACC violated his procedural rights in its handling of the matter. In particular, he is challenging the legality of ZACC’s powers of arrest – which is a procedural issue. This constitutional matter will take at least a month before it is resolved. If the court finds that ZACC acted unlawfully it will have to make an order whether to stop the prosecution permanently or make such an order as is appropriate in the circumstances.
The big lesson for ZACC and other law enforcement agencies is that they must have clear rules and protocols for handling matters, which are consistent with constitutional rights as enshrined in section 50, 57, 68, 69 and 70, among others. Any failure to do so and any hastiness could lead to bungling which could jeopardise otherwise simple prosecution cases. Later this week, I will explain how ZACC can improve its systems in order to avoid similar challenges as it is facing in the Moyo/ZIMDEF case.
WaMagaisa
