Private prosecution is prosecution that is initiated by a private person that has an interest in the matter. In Zimbabwe most prosecutions are conducted by the State however, it is permissible for a private party to prosecute a case. A private citizen in terms of Section 13 of the Criminal Procedure and Evidence Act must show cause why they should be allowed to prosecute. The individual must show substantial or peculiar interest in the conviction of the offender which will be as a result of some form of injury that they suffered stemming from the commission of the crime. The private prosecutor bears the burden of proving that the standards highlighted above have been met.
It’s worth noting that a person who has not been personally impacted by a crime can nevertheless prosecute it under Section 14 of the Criminal Procedure and Evidence Act;
14 What other persons entitled to prosecute
The following shall possess the right of prosecution —
a spouse of the person in respect of whom the offence was committed;
(b) the legal guardians or curators of minors or mentally disordered or defective persons, in respect of offences committed against their wards;
(c) the surviving spouse or children or, where there is no surviving spouse or child, any of the next-of-kin of any deceased person, in respect of any offence by which the death of such person is alleged to have been caused;
(d) public bodies and persons on whom the right is specially conferred by statute, in respect of particular offences.
For a private citizen to institute proceedings they must have a certificate known as a nolle prosequi from the Prosecutor General which highlights that the Prosecutor General shall not prosecute the case and resultantly he/she issues the certificate to the private party that shall prosecute the case. Before being given the certificate, one submits a written request to the Prosecutor General that they have a substantial right in the matter, that they are a victim of the alleged offence or an interested party that is not the victim, but suffered directly as a result of the alleged offence’ has the means to prosecute effectively and timeously and that they will prosecute the case as an individual. Section 16(2) of the Criminal Procedure and Evidence Act gives the precise requirement to be satisfied, it states that –
16 Certificate of Prosecutor-General that he or she declines to prosecute
(2) The Prosecutor-General shall grant the certificate referred to in subsection (1) if—
(a) there is produced to him or her by the private party a written request in the form of a sworn statement from which it appears to the Prosecutor-General that the private party—
- is the victim of the alleged offence, or is otherwise an interested person by virtue of having personally suffered, as a direct consequence of the alleged offence, an invasion of a legal right beyond that suffered by the public generally; and
- has the means to conduct the private prosecution promptly and timeously; and
- will conduct the private prosecution as an individual (whether personally or through his or her legal practitioner), or as the representative of a class of individuals recognised as a class for the purposes of the Class Actions Act [Chapter 8:17] (No. 10 of 1999); and
(b) no grounds exist in terms of subsection (3) for withholding the certificate.
The Prosecutor General grants the certificate (nolle prosequi) is at their discretion, considering factors such as prospects of success if the case is tried (proving the case beyond a reasonable doubt looking at the whether there is sufficient evidence to try the case); whether or not it is against the interests of public and national security, and whether or not the conduct complained of by the private party discloses (constitutes) a criminal offence.
In some circumstances a certificate from the Prosecutor General is not required for private prosecution to occur, where the Prosecutor General has by way of his/her action communicated their desire not to proceed with prosecution. Where the accused is already incarcerated or out in terms of Section 10 of the Criminal Procedure and Evidence Act, the private prosecutor can apply to the High Court or a Judge for a warrant for the accused person’s further detention. Such conduct may be taken as the Prosecutor General not prosecuting the case.
In terms of Section 17 of the Criminal Procedure and Evidence Act a private prosecutor other than that stipulated in Section 14(d) may be called upon to furnish security for costs to cater for the costs that would have been incurred by the accused person in defending the case in the event of their acquittal as well as other costs that may be required by the registrar, clerk of court or any other concerned office for any criminal process that must be done in relation to the case. The same stance is noted where the private prosecution is successful at the discretion of the court the state or guilty party may be called upon to pay to the private prosecutor the costs they incurred in pursuing the case. In the event that the prosecution stemmed from malice the court may exercise its discretion to order the private prosecutor to pay additional costs as maybe determined by the court.
A Legal Practitioner may represent their client in a private prosecution case the details of such shall be discussed in the next article.
This article is for general information purposes. Please seek advice from your lawyer.
