The Prosecutor General of Zimbabwe v Shmuel Khainan Klein

The respondent, a 58-year-old Israeli national and pilot instructor, was charged with two counts: (1) contravention of section 3 of the Precious Stones Trade Act for unlawfully possessing 8,486.66 carats of rough diamonds valued at $2,437,708.22 at Harare International Airport on 17 March 2012; and (2) contravention of section 12(1) of the Immigration Act for entering Zimbabwe without presenting himself to immigration authorities. The respondent was dressed in his pilot uniform and was a transit passenger scheduled to fly to Israel. During security screening, the diamonds were discovered in his hand luggage. He produced a licence from a diamond company for which he claimed to be an agent and documents showing the diamonds originated from South Africa, not Zimbabwe. On the immigration charge, he claimed he was on duty and had a valid boarding pass. The Regional Magistrate acquitted the respondent on both counts. The Prosecutor General obtained leave to appeal the acquittal, but subsequently sought to withdraw the appeal.

• Whether the Prosecutor General has the unilateral power to withdraw a criminal appeal once it has been noted and the court is seized with it
• Whether the court can refuse to grant an order of withdrawal and direct that the appeal be argued on the merits
• The scope and limits of the independence of the Prosecutor General in exercising prosecutorial functions under sections 258 and 260 of the Constitution
• Whether the court can review or interfere with the Prosecutor General's discretion to withdraw a prosecution or appeal in the absence of a complaint by an affected party

1. The appeal by the Prosecutor General in case No. CRB R 263/12 is withdrawn by the Prosecutor General as appellant. 2. The judgment of the Regional Magistrate dated 25 April 2012 acquitting the respondent shall remain extant.

The power of the Prosecutor General to institute and conduct criminal prosecutions under sections 258 and 260 of the Constitution and section 12 of the National Prosecuting Authority Act necessarily includes the power to discontinue or withdraw such prosecutions and appeals. The discretion to withdraw a prosecution is a fundamental prosecutorial function that courts cannot review or interfere with mero motu. While the Prosecutor General must exercise functions impartially without fear, favour, prejudice or bias as mandated by section 260(1)(b) of the Constitution, courts can only enquire into alleged breaches of this duty where an aggrieved party raises a complaint of violation of fundamental rights. In the absence of such a complaint, the withdrawal of an appeal is a unilateral act within the Prosecutor General's exclusive discretion, and the court must endorse the withdrawal without requiring justification.

The court observed that in exercising prosecutorial discretion, the Prosecutor General takes into account the public interest, the interests of justice, and the need to avoid abuse of court process. Many factors influencing such decisions may not be in the public interest to disclose. The court emphasized that the Prosecutor General should not be subjected to pressure either by the Executive or by the courts in the proper exercise of prosecutorial functions. The court cited R v Comptroller-General of Patents (1899) 1 QB 909 regarding the non-reviewability of the Attorney General's functions, and referenced Prosecutor General v Telecel Zimbabwe (Pvt) Ltd SC 1/2014; 2015 ZWCC 10; CCZ 10/15 as an example where courts intervened only to compel compliance with a statutory duty (issuing a nolle prosequi certificate) rather than interfering with the decision not to prosecute. The court noted that while the right to appeal derives from sections 61 and 62 of the Magistrates Court Act requiring leave, nothing prevents subsequent withdrawal of the appeal.

This case is significant for establishing the constitutional principles governing the independence of the Prosecutor General in Zimbabwe under the 2013 Constitution. It clarifies that the prosecutorial power includes the inherent discretion to withdraw prosecutions and appeals, and that courts cannot interfere with this discretion absent a complaint by an affected party alleging violation of constitutional safeguards. The judgment reinforces the separation of powers between the judiciary and the prosecuting authority, delineating the limited circumstances in which courts may review prosecutorial decisions. It provides important guidance on the scope of sections 258 and 260 of the Constitution and their interaction with the National Prosecuting Authority Act.