COURSE NAME: MASTER OF LAWS (LLM)-ZM

STUDENT NAME: ENOCK HANGWEMU

STUDENT ID NUMBER: 10666604

TITLE OF WORK: INDUCTION MODULE UU-MSC-IND100-ZM

(ASSIGNMENT 4: THE ARGUMENTATIVE ESSAY)

TUTOR’S NAME: EVANGELIA PAPAMIKROULEA

DUE DATE: 28/06/2020

 CRITICAL ANALYSIS OF THE POWERS OF THE DIRECTOR OF PUBLIC
PROSECUTIONS TO DISCONTINUE CRIMINAL PROCEEDINGS BY WAY OF NOLLE
PROSECUI AND ITS EFFECT ON THE RULE OF LAW AND RULES OF NATURAL
JUSTICE

The term “nolle prosequi” is Latin which loosely translates to mean ‘will not prosecute’. It is
often used to temporarily stop a criminal proceeding due either to lack of adequate evidence
or when the prosecution wants to re-assign the charges. Gurzon, L.B. (1998).

The need to retain and maintain nolle prosequi in the criminal procedure has been widely
debated in most countries of the world. This issue is of great concern because its use affects
fundamental rights of individuals who face criminal trials. Judges and activists have raised
serious concerns on the use of nolle prosequi as an instrument to seemingly curtail freedom
of accused person to state their cases. This study is intended to critically analyse the powers
of the Director of Public Prosecutions to discontinue criminal proceedings by way of nolle
prosequi with a view to reform it.

Several arguments have been advanced in favour of nolle prosequi. For instance, Richardson,
P.J. (2002) states that;

“ Nolle prosequi is usually directed to be entered in cases where

accused person cannot be produced in court to plead or stand trial
owing to physical or mental incapacity which is expected to be
permanent.”

Equally, the Director of Public Prosecutions in Zambia argued that nolle prosequi was a
‘necessary evil’ as it is needed for effective prosecution of crimes in certain cases. He says in
complicated cases, the evidence may only emerge several years later after committing the
offence. Lusaka Times (18.08.2017). Another justification for nolle prosequi by the state is
on basis of inadequate evidence against accused so that costs and time is preserved. Peretti C.
(2012).

However, as was observed by the Mung’omba Constitutional Review Commission (2003),

being released on nolle prosequi does not guarantee the freedom of the accused person
because the case does not end with nolle prosequi. The charge still hangs on accused’s head
and can still be arrested on the same charge years later. Further, since one is not acquitted, he
cannot exercise the right to sue for unlawful arrest, detention or malicious prosecution.
Therefore, the argument for retaining and maintaining nolle prosequi in criminal procedure
seems not to have strong base.
Peretti, L. C. (2012) and Smith, J.T. Jr. (1966) observes that there is something of a practical
conflict between the right of an accused to speedy and fair trial and use of nolle prosequi and
it is obvious from the nature of nolle prosequi that it presents possibilities of abuse.

Sakala, B.J. (2010) equally stated in his observation that nolle prosequi is another area where
access to justice is frequently denied to accused persons in the criminal justice system of the
country and that such power is usually abused by the state for one reason or another. For
instance, he referred the case of the People V. David Somba and Dillar Bwalya (1979), in
which the Director of Public Prosecutions entered nolle prosequi and shortly thereafter re-
arrested the accused persons and brought them before a different court only to have them
discharged again under Section 88 of the Criminal Procedure Code. But this discharge was
not a bar to subsequent arrest on the same charge. He said one did not need to be highly
imaginative to see that the prosecutor was avoiding embarrassment by trying his chance in
another court. (ibid.)

In 1988 the nolle prosequi was used in a politically sensitive cases in which the state
discontinued prosecuting the accused persons when the chances of succeeding appeared dim.
Dean Mung’omba and Princess Nakatindi Wina were discharged under nolle prosequi after
being charged for treason. This prompted Justice Japhet Banda to remark that the nolle
prosequi was entered in bad faith. He then stated that; “ I hope the powers that be would
amend the law on nolle prosequi to prevent abuse.” Sakala J.B. (2010).

Section 81(1) of the Criminal Procedure Code read together with Article 56(3)(c) of the
Zambian Constitution gives unfettered power to the Director of Public Prosecutions to use
nolle prosequi to discontinue criminal proceedings at any stage before determination and this
power cannot be challenged by anyone. R. V. Comptroller of Patents (1899). However,
Sakala, J.B. (2010) observes that it is not in dispute that such unchallenged discretionary
powers can be abused in the absence of clear guidelines.

Nolle prosequi also poses potential conflict with principles of good governance. Rules of
natural justice and the rule of law all advocate fair and speedy trial of a defendant in criminal
proceedings Allen, M. & Thompson, B. (2003). The Constitution of Zambia under Article
13(3)(b) guarantees right of accused person to fair and speedy trial. This right is expressly
designed to prohibit arbitrary and oppressive delays that might be caused by the prosecution.
Commenting on rule of law, Lord McDermott (1957) stated that ‘rule of law’ is a badge of a
free people-equality before the law, independence of the courts, absence of arbitrary
government and for established sources of law. It prefers the individual to the state and
suffers whenever the normal freedoms and liberties of the former are curtailed without just
cause.

In conclusion, there is indeed something of a practical conflict between the rights of an

accused person to speedy and fair trial and the use of nolle prosecui and it is obvious from the
nature of nolle that it presents possibilities of abuse. It is therefore recommended that the
provision of nolle prosequi in criminal justice system be reviewed with a view to reforming
it.
 REFERENCES

Allen, M. & Thompson, B. (2003). Cases and Materials on

Constitutional & Administrative Law 7th ed. Ox. Un. Press. UK.

Gurzon, L.B. (1998). Dictionary of Law, 5th Ed. Pitman Publishing. U.K.

Lord McDermott (1957). Protection from Power under English Law.

The Hamlyn Lectures, 9th Series. Stevens & Sons Ltd.
Eastern Press Limited, London.

Lusaka Times (17.08.2017). Nolle Prosequi Question.

lusakatimes.com/2017/08/17/nolle-prosequi-question

Mung’omba Constitutional Review Commission (2003). Report of Constitutional

Review Commission. The Secretariat, Govt. Printers, Lusaka.

Peretti C. (2012). Nolle Prosecui in Maryland-What it is and what it means

to your Criminal Case. www.perettillc.com

Richardson, P.J. (ed)(2002). Archbold: Criminal Pleading, Evidence

and Practice. Sweet & Maxwell, London. U.K.

Sakala, B.J. (2010). The Role of Judiciary in the Enforcement of Human Rights in
Zambia. Image Publishing Limited, Lusaka, Zambia

Smith, J.T.Jr (1966). Criminal Law-Nolle Prosecui with Leave-Possibility of Abuse,

44 N.C.L. Rev.1126(1966) http://scholarship.law.unc,ed/nclr/ vol44/1354/12