DPP should be independent from AG-Commission
Mpho Mokwape | Monday November 28, 2022 06:00
The Director is referred to as a public officer and has always been subject to supervision from the AG but the Commission has recommended that Section 51A (1) of the Constitution be amended to make it discretionary whether the Director should consult the AG or not. “The Commission recommends that Section 51A (1) (6) (b) of the Constitution be amended to make it discretionary whether the Director of DPP should consult the AG or not in cases considered of national importance,” reads the recommendation.
The DPP was established by the Constitution Amendment of 2005 and when it was established, the Directorate was provided for in Section 51A of the Constitution.
According to Section 51A (1) it provides many of the following that there shall be a Director of DPP appointed by the President whose office shall be a public office and who shall be subject to the administrative supervision of the AG. That a person shall not be qualified to be appointed to the Office of Director of DPP unless he or she is qualified to be appointed to the Office of a Judge of the High Court. The Section further provides that the Director shall have power in any case in which he or she considers it desirable to do so like to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed by that person, to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority and to discontinue, at any stage before judgement is delivered, any such criminal proceedings instituted or undertaken by himself or herself or any other person or authority. Furthermore, the Commission recommends that the organisation in the criminal justice system should be adequately resourced to enable them to carry out their responsibilities within reasonable time.
As of now, since the Director is subject to administrative supervision, the extent of the independence of the DPP is explained by various subsections of Section 51A. Accordingly, Subsection (1) provides that the office shall be public office and shall be subject to administrative supervision of the AG and the effect of this subsection has been explained such that the Director of DPP is a public servant and is subject to the rules governing the public service, in particular the Public Service Act. That he/she is subject to the administrative supervision of another office, the office of AG. How it affects the DPP, it was explained well in a detailed presentation by the late former DPP Director Leonard Sechele in a 2013 Judicial Conference on the independence of DPP. In his case study he pointed out that the administrative supervision by AG affects independence in so far as the DPP does not have its own resources and its independence may be affected by its dependence on the resources of the AG. He explained that for the authority to spend the budget it required the approval of the AG. Subsection (2) sets the qualification of the Director of DPP to be same as those of Judges of the High Court.
The import of this provision is to ensure that the President appoints a person with the calibre to efficiently discharge the prosecutorial function. Subsection (3) set out prosecutorial powers. Meanwhile, on issues still concerning the judiciary, the Commission has recommended that a Parliamentary Select Committee on the appointment of Chief Justice and the President of the Court of Appeal should be established. For a long time the two appointments have been done by the sitting President. Section 96 (1) of the Constitution offers that the Chief Justice shall be employed by the President and Section 100 (1) offers that the President of the Court of Appeal shall, except the office is held ex-officio through the Chief Justice, be employed by the President. The Commission has now said that the President should nominate and submit three names for the position of Chief Justice or President of Court of Appeal to the Parliamentary Select Committee, that the Committee assesses or interviews the three candidates and recommend two names to the President from which to appoint Chief Justice or President of the CoA and that the interviews of candidates for CJ position, President of CoA and High Court judges be open to the public.
Further, the Commission wants the status quo on the appointment of judges of the High Court be maintained, namely that the judges be appointed by the President in accordance with advice of the JSC. The Commission has also recommended that the Constitution be amended for the JSC to consists many among them the Chief Justice as chairman, President of CoA, AG, member of Law Society of Botswana, one opposition Member of Parliament, one ruling party member and many others. In conclusion the Commission wants the judges of the Industrial Court to be appointed by the minister in accordance with advice of the JSC and that the current system of dealing with Constitutional matters by the CoA and appeals from the Industrial Court by CoA be retained and that it was not necessary to establish the Constitutional Court or Industrial Court of Appeal.
According to the Constitution, judges of the Industrial Court are appointed by the President in accordance with the advice of the JSC.