Prosecutors play a crucial role in the administration of justice, and respect for the rule of law requires a strong prosecutorial authority in charge of investigating and prosecuting criminal offences. Each prosecutor must be empowered to fulfil his or her professional duties in an impartial and objective manner.
Prosecutors must perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights.[1] They perform an active role in criminal proceedings,[2] and must carry out these functions impartially and objectively, protecting the public interest.[3]
This requires, among other things that Prosecutors:
- Ensure that victims of crime are provided with information about the proceedings and their rights within them, and consider their views, as appropriate;[4]
- Do not initiate or continue a prosecution when an independent investigation indicates that the charge is unfounded;[5]
- Refuse to use evidence gained as a result of unlawful means, including torture or other ill-treatment, except in proceedings against those allegedly responsible for using such unlawful means;[6]
- Give due attention to the prosecution of crimes committed by public officials, including in particular corruption, abuse of power, violations of human rights and crimes under international law.[7]
States must ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.[8] In particular, the authorities must physically protect prosecutors and their families when their personal safety is threatened as a result of discharging their prosecutorial functions.[9]
The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference.[10] Further, the law or published rules and regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecutorial process.[11] If non-prosecutorial authorities have the right to give general or specific instructions, those should be transparent, consistent with lawful authority, and subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.[12]
Under Swaziland’s Constitution, the Director of Public Prosecutions has the power, in any case in which he or she considers it “proper”:
- to institute and undertake criminal proceedings against any person before any court other than a Court Martial;
- to take over and continue any criminal proceedings;
- to discontinue at any stage before the delivery of a judgement, any criminal proceedings instituted or undertaken by the DPP or any other person or authority; and,
- to perform “such other functions as may be prescribed”.[13]
In the exercise of these powers, the Director must have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process; furthermore, he or she must be independent and not subject to the direction or control of any other person or authority. In matters where national security may be at stake, the Attorney-General is to be consulted, “without derogation” however from the previous provision.[14]
In practice, however, the DPP’s office has reportedly instituted or continued proceedings against private citizens for political reasons.[15]
Under the Criminal Procedure and Evidence Act 1938, if the authorities[16] decline to prosecute a person for an alleged offence, individuals can bring a private prosecution, if if they can show some substantial and peculiar interest is at issue in the case, that arises out of some injury that he or she individually suffered.[17] However, the DPP’s constitutional power “to take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority”[18] means that he or she can assume control of cases that were initiated as private prosecutions.
- 1. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(h);
Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”ArticleProsecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.
and ”ArticleProsecutors shall… respect, protect and uphold the universal concept of human dignity and human rights.
.↵Prosecutors shall perform their duties fairly, consistently and expeditiously.
- 2. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(g);
Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.
International Association of Prosecutors Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”ArticleProsecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of decisions of judicial bodies and the exercise of other functions as representatives of the public interest.
↵4.2 Prosecutors shall perform an active role in criminal proceedings as follows:
a) where authorised by law or practice to participate in the investigation of crime, or to exercise authority over the police or other investigators, they will do so objectively, impartially and professionally;
b) when supervising the investigation of crime, they should ensure that the investigating services respect legal precepts and fundamental human rights;
c) when giving advice, they will take care to remain impartial and objective;
d) in the institution of criminal proceedings, they will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence; throughout the course of the proceedings, the case will be firmly but fairly prosecuted; and not beyond what is indicated by the evidence;
e) when, under local law and practice, they exercise a supervisory function in relation to the implementation of court decisions or perform other non-prosecutorial functions, they will always act in the public interest.
- 3. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(i);
In the performance of their duties, prosecutors shall:
(a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;
(b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;
(c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;
(d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
International Association of Prosecutors Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”ArticleIn the performance of their duties, prosecutors shall:
1. carry out their functions impartially and avoid all political, social, racial, ethnic, religious, cultural, sexual, gender or any other kind of discrimination;
2. protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;
3. keep matters in their possession confidential, unless the performance of duty or needs of justice require otherwise;
4. consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the provisions below relating to victims., ”ArticleProsecutors shall… always serve and protect the public interest;
and ”ArticleProsecutors shall perform their duties without fear, favour or prejudice. In particular they shall: … carry out their functions impartially;
…have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;↵ - 4. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(i)(4).
In the performance of their duties, prosecutors shall:…
(d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
↵In the performance of their duties, prosecutors shall:
4. consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the provisions below relating to victims.
- 5. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(j).
Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.
↵Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.
- 6. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(l).
When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.
↵When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall
refuse to use such evidence against anyone other than those who used such methods, or inform the judicial body accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice. - 7. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(k).
Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.
↵Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences
- 8. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(a)(2);
States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”ArticleStates shall ensure that:
…
2. Prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.
↵In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled:
(a) to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;
- 9. UN Guidelines on the Role of Prosecutors, ”GuidelineInternational Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”Article
Prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions.
↵In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled:
…
(b) together with their families, to be physically protected by the authorities when their personal safety is threatened as a result of the proper discharge of their prosecutorial functions;
- 10. International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”Article↵
The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference.
- 11. UN Guidelines on the Role of Prosecutors, ”Guideline↵
In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.
- 12. International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”Article↵
If non-prosecutorial authorities have the right to give general or specific instructions to prosecutors, such instructions should be:
- transparent;
- consistent with lawful authority;
- subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.
- 13. Constitution, S. 162(4).↵
(4) The Director shall have power in any case in which the Director considers it proper to do so, to-
(a) institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person against the laws of Swaziland;
(b) take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority;
(c) discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the Director or any other person or authority; and
(d) perform such other functions as may be prescribed.
- 14. Constitution, S. 162(6)-(7)↵
(6) In the exercise of the powers conferred under this Chapter, the Director shall –
(a) have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process; and
(b) be independent and not be subject to the direction or control of any other person or authority.
(7) Without derogating from the provisions of subsection (6), the Director shall, in the exercise of the powers under this Chapter, consult the Attorney-General in relation to matters where national security may be at stake.
- 15. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 111.↵
- 16. Criminal Procedure and Evidence Act, S. 3.Note that the Act pre-dates the creation of the DPP, and designated the Attorney-General as the prosecuting authority.↵
The Attorney-General, in accordance with the powers conferred upon him by section 91 of the Constitution is vested with the right and entrusted with the duty of prosecuting in the name and on behalf of His Majesty the King in respect of any offence committed in Swaziland.
- 17. Criminal Procedure and Evidence Act, S. 10.↵
If the Attorney-General declines to prosecute for an alleged offence, any private party who can show some substantial and peculiar interest in the issue of the trial, arising out of some injury which he individually has suffered by the commission of such offence, may prosecute the person alleged to have committed it in any court.
- 18. Constitution, S. 162(4)(b).↵
(4) The Director shall have power in any case in which the Director considers it proper to do so, to-
…
(b) take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority;
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