CENTRE FOR LAW AND POLICY
By Retired Supreme Court Judge Dunstain Fipamutima Mwaungulu
Policy and Law
The Director of the Anti-corruption Bureau Debacle can end just by a stroke of a pen without much pain!
So much so that the Attorney General’s insistence to oppose the judicial review is the most callous display of the Attorney General’s (and the Director of Public Prosecution’s) failure to understand the point where policy and law intersect.
The Constitutional test of prosecution is desirability. The Director of Public Prosecution does not have to prosecute all crimes. It is only when it is “desirable” to prosecute. Given the fight(against corruption), the frustration which is that of the DOTAB (Director of the Anti-corruption Bureau), the public outcry, it is not at all “desirable” to prosecute this crime and the DOTAB as a matter of policy or law.
My judicial pronouncements, academic discourse and now in my text book to be published, I contend strongly that the decision to prosecute is both political and legal. Political here refers to policy rather than politics. There are instances where, even if all points to a crime being committed, the Director of Public Prosecution (the DPP), as a matter of policy and principle (not law), should not prosecute. The classic cases are where the suspect will be used as a witness to solve a serious crime against a grave offender or there is a principal and the suspect was only a fringe offender. The case here is that there was an agent provocateur who meant to trap the DOTAB. If the agent provocateur was a government agent, the more and the better the reason not to prosecute the DOTAB. There is, as a matter of principle, grave injustice for government agents to entrap citizens into crime, even if the the ultimate aim is to solve crime. If the agent provocateur was just a simpleton, the DOTAB’s error was succumbing to the simple man. If the agent provocateur was a fiend, certainly, as a matter of principle, the DOTAB should not be sent to prison for this. The second instance is where the crime is, as in this case, a minor infraction of a crime even if the suspect should have known better. The offence alleged here in a scale of 1 to 400, would be number 394, where 1 is the most serious crime. Why would the DPP want to prosecute such a minor infraction? Because the DOTAB is a big dude and there is a textbook case! That would be a traversity of justice!
The DPP’s decision to prosecute is equally a legal one. Prosecutions must be in the interests of justice. Prosecuting the DOTAB for minor infractions in the course of the noble duty to fight the greater and prevalent crime is injustice to the public par excellence. It is injustice to the public on whose behalf the criminal justice is prayed for.
The Director of Public Prosecution should, therefore, under the Constitution and the Criminal Procedure and Evidence Code, DISCONTINUE these proceedings and save the Attorney General, the SPC and the Government the blushes.
The SPC’s interdiction is a contractual matter and from the look of things, the principles of natural justice entrenched in the Public Service Act, were not followed. The MPSR, and I need to verify this, where a person is charged with a crime, restricts the crimes for which there could be a dismissal and, therefore, justifying interdiction. Interdiction is for misconduct, not the crime, and the misconduct is abscondment. Where, a public officer, is absent from work because he is detained in prison, there is misconduct by abscondment if the incarceration is above 48 hours. Where, therefore, there was no incarceration and the public officer was only charged and not arrested, there cannot be abscondment, I suspect.
The Director of Public Prosecutions must sum up courage and as a matter of policy and principle discontinue these proceedings. The decision is just a pen away that would take all our pain away!
