Zimbabwe Law Officers Association and Dereck Charamba v National Prosecuting Authority and Others

The Zimbabwe Law Officers Association (first applicant), representing public prosecutors' interests, and its Secretary General, Dereck Charamba, a public prosecutor (second applicant), challenged the engagement of serving members of security services (Defence Forces, Police Service, and Prisons and Correctional Services) as prosecutors by the National Prosecuting Authority (NPA). At the time of the hearing, at least 100 serving members of security services were employed as prosecutors throughout Zimbabwe. The applicants alleged this practice violated section 208(4) of the Constitution, which prohibits serving members of security services from being employed in civilian institutions except during public emergencies. The applicants also argued it violated accused persons' rights to fair trial under sections 56(1) and 69(1) of the Constitution, claiming that security services members' training in obedience and subordination made them unable to attain the impartiality and independence required of prosecutors.

• Whether the employment of serving members of security services as public prosecutors violates section 208(4) of the Constitution which prohibits such employment in civilian institutions except during public emergencies
• Whether the National Prosecuting Authority qualifies as a 'civilian institution' for purposes of section 208(4)
• Whether the engagement of security services members as prosecutors infringes accused persons' rights to fair trial under sections 56(1) and 69(1) of the Constitution
• Whether the applicants had standing to bring the constitutional challenge

The Court declared that the engagement by the NPA of serving members of security services to perform prosecutorial duties contravened section 208(4) of the Constitution. The first and second respondents were directed to disengage all serving members of security services within their employment within 24 months from the date of the order. Each party was ordered to pay its own costs.

The binding legal principle established is that section 208(4) of the Constitution prohibits the employment of serving members of security services (Defence Forces, Police Service, Prisons and Correctional Services) in civilian institutions except during periods of public emergency. The National Prosecuting Authority constitutes a 'civilian institution' for purposes of section 208(4) because the Prosecutor General and prosecution officers are not members of security services. A 'civilian' is defined by its ordinary grammatical meaning as a person not in the army, navy, police force, or clergy, since the Constitution does not define the term. Any conduct inconsistent with the Constitution is invalid to the extent of the inconsistency pursuant to section 2 (constitutional supremacy). The Court may suspend a declaration of invalidity under section 175(6)(b) to allow the competent authority time to correct the constitutional defect and prevent injustice.

The Court observed that while the applicants argued their fundamental rights were violated, they had not demonstrated how their rights under sections 56(1) and 69(1) were infringed, as they represented prosecutors' interests and not accused persons' rights. The Court noted that the training security services members undergo, emphasizing obedience and subordination to superiors, differs from the impartiality and independence required of prosecutors, though this was not necessary for the final determination. The Court commented that although the matter raised procedural irregularities regarding standing, the public importance of the issue justified determining it on the merits, citing with approval the South African Constitutional Court's approach in Herkpoort Environmental Preservation Society v Minister of Land Affairs and similar reasoning in Kenyan jurisprudence. The Court acknowledged that an immediate order removing security services members would lead to chaos, particularly in remote areas where they were the only prosecutors available.

This case is significant in Zimbabwean constitutional law as it establishes the separation between security services and civilian prosecutorial functions, reinforcing constitutional supremacy and the principle that security services must remain distinct from civilian institutions except during declared public emergencies. It demonstrates the Constitutional Court's willingness to interpret constitutional provisions purposively while exercising remedial flexibility by suspending declarations of invalidity to prevent administrative chaos. The judgment clarifies that the National Prosecuting Authority is a civilian institution despite not forming part of the Civil Service, and establishes that ordinary dictionary meanings apply to constitutional terms not defined in the Constitution. It reinforces the independence and impartiality required of prosecutors as distinct from the command structure of security services.