Nolle Prosequi or Withdraw in any criminal proceedings by director of public prosecution

The Director of Public Prosecutions (DPP) is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world[1]. The office of the DPP is established under Article 59B (1) of the Constitution of the United Republic of Tanzania[2] which provides that, “there shall be a Director of Public Prosecution who shall be appointed by the President…” Also, under Section 89 of the Criminal Procedure Act[3], it is provided that there shall be a Director of Public Prosecution for the United Republic of Tanzania who shall be a public officer in the government who shall be appointed by the President.

Criminal Justice is the system of law enforcement, the bar, the judiciary, corrections, and trial that is directly involved in the apprehension, prosecution, defence, sentencing, imprisonment, and supervision of those suspected of or charged with criminal offences[4].

In Tanzania, the general of criminal prosecution is vested in the Director of Public Prosecutions (DPP). The DPP is empowered by law to institute and undertake criminal proceedings against the accused person before any court (other than the court martial) in respect of the charged offence as provided under Section 90(1) (a) of CPA[5]. Further, the DPP may discontinue any criminal proceedings whether or not they were instituted and undertaken by him. The discontinuation may either be by way of a Nolle Prosequi or Withdrawal of charges against the accused person. This has been provided under sections 91 and 98 of the CPA.

Nolle Prosequi is a Latin word which means, “we shall no longer prosecute” a trial. This is an entry made upon the record by the prosecutor in a criminal case stating that he will no longer pursue the matter. An entry of Nolle Prosequi may be made at any time after charges are brought before the court and before verdict or plea is entered. Essentially, it is an admission on the part of the prosecution so that some aspects of its case against the defendant have fallen apart[6]. It is not necessary that the DPP stands physically in court when entering the nolle prosequi. It is sufficient if he can inform the court concerned in writing on behalf of the Republic that the State has preferred to discontinue the case by nolle prosequi. This is in accordance with Section 91(1) CPA. When the DPP enters Nolle Prosequi to the charge is not required to give reasons for the decisions. This was stated in the case of Gachungu and Others V R[7] where by the court state that the DPP is not required to give reasons to any charge when Nolle Prosequi is entered.

The effect of entering a Nolle prosequi is that, the accused is discharged of the offence for which the nolle prosequi is preferred, and, if he is in custody then such custody, then such custody should cease immediately as provided under section 91(1) CPA. Similarly, if the accused was out on bail, his recognizance or bail bond or sureties should be discharged accordingly. All that which could be done in the absence of the nolle prosequi, such as remanding the accused, calling witnesses, or trial, should come to an immediate stop. The court is therefore bound to send a notice in writing to all persons and institutions (for example witnesses and prison) that the case has been discontinued as per section 91(2) CPA.

Withdrawal of Criminal proceedings is the discontinuation of criminal proceedings done at any stage before judgment is entered. This may be initiated only with the leave of the DPP in case the prosecutor is not the DPP himself but other public prosecutors as provided under Section 98 CPA. In the case of Musoke and Another V Uganda[8], it was stated that the DPP may withdraw a case by instructing a Public Prosecutor (PP). The withdrawal could either be generally or specifically stated in respect of the one or more of the offences charged. For example where the accused is charged with rape and another count of theft, the withdrawal may be either be in respect of the two offences generally or of rape and not theft and vice versa specifically. The main difference between Withdrawal and Nolle prosequi lies on the fact that, withdrawal is entered when the prosecution side is has insufficient evidence to convict the accused person; withdrawn charges can be re-instituted after the collection of sufficient evidence.

However, where the withdrawal is made after the accused person is called upon to make his defence, then he must be acquitted and no subsequent charges founded on the same facts can be entertained by reason of the plea of autrefois acquit. This point can be referred to in the case of R V. Jivan Nathu[9]. The reason given was, “all the material facts are before the court for its determination and the withdrawal of a case is a sign that the prosecution has finally realized that it has no concrete case against the accused, hence the withdrawal in order to put the matter to an end without too much ado.”

            
Section 94(1) CPA provide for offences which are tried after the consent of DPP. Proceedings for the trial of any person who is not a citizen of United Republic of Tanzania for an offence committed on the open sea within two hundred nautical miles of the coast of United Republic of Tanzania measured from the low-water mark shall not be instituted in any court except with the leave of the DPP and upon his certificates that such proceedings should be instituted[10] 

Under Article 59B of the Constitution of the United Republic of Tanzania[11] it is provided that the DPP shall have powers to institute, supervise and prosecute all criminal prosecutions in the country. In exercising his powers, the DPP shall have freedom, shall not be interfered with any person or with any authority and shall have regard to intention to dispense justice, prevention of wrong application of procedures and public interest (also provided under Section 90 CPA). On the other hand, Article 107A (1) of the Constitution of the United Republic of Tanzania of 1977 provides that, the authority with final decision in the dispensation of justice in the United Republic shall be the judiciary. Further, Article 107B provides that, all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the law of the land. Now, on the issue of whether the DPP totally takes away the role of courts in the administration of justice when he enters Nolle Prosequi or Withdrawal in any criminal proceedings, it may be argued that, on entering nolle prosequi and withdrawal, the DPP takes away the role of the courts in the administration of criminal justice but not totally. Discontinuation of criminal proceedings under Section 91CPA does not operate as a bar to subsequent proceedings against the accused person founded on the same facts upon which the nolle prosequi was entered. This is because, for anything to act as a bar to subsequent proceedings, criminally, the case must have been heard on merits and decision made thereon by the court. A case is said to have been heard on merits where the prosecution has already argued its case and the accused person has had an opportunity to defend himself and thereby facilitating the court to pass the verdict of either guilty or not guilty[12]. In addition, where the Withdrawal (by the DPP) is entered on a specific offence among several offences on trial, the court is left with trying the remaining offences. For instance, where the accused person is charged with rape and another count of theft, the withdrawal may either in respect of the two offences generally or of rape and vice versa. Nevertheless, a point of emphasis here is that the withdrawal of case is a judicial act as opposed to mere administrative measures by the prosecution side. The court must be satisfied that there are concrete reasons for such a withdrawal and it should record them before granting the request to withdraw[13].

In the recent time there has be a series of complaints against the office of the DPP. These complaints mainly relate to way the DPP has been exercised his powers to withdraw charges against accused persons by the way of entering Nolle Prosequi. This is because section 90(6) of CPA provides that “in the exercise of the powers conferred on him by this section, the DPP shall have and exercise his own discretion and shall not be subject to the discretion or control of any person except the president[14]. People are calling for review of the powers of the DPP or at least a duty should be imposed on the DPP to give reasons for his decisions to withdraw a case.

           
The controversial powers of the DPP to enter Nolle Prosequi as provided under section 91 of CPA proved that

“In any criminal case and at any stage thereof before verdict or judgement s the may be, the Director of Public Prosecution my enter Nolle Prosequi, either by standing in court or by informing the court the court concern in writing on behalf of the Republic that the proceedings shall not continue, and thereupon the accused shall once be discharged in respect of the charge for which Nolle Prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizance’s shall be discharged, but such discharge of an accused person shall not operates as a bar to any subsequent proceedings against him on account of the same facts”[15]

           

            There is no doubt from the above that there is a problem with way the law has granted such wide powers to one person without any limit or safeguard to the public from the readings of the Criminal Procedure Act of 1985,it does not suggest that the DPP can successfully be challenged in exercise of  his wide powers. Secondly, it important to remember that in most cases the DPP on behalf of the United Republic of Tanzania is acting on behalf of victim of violation of a legal right. But the same DPP is not legally required to consult the victim before deciding to withdraw the case against accused or to enter nolle prosequi. In this process, many victims of police brutality have remained without remedy because the DPP in exercise of the powers under this Act has taken over the cases against these law enforcement officers only to store them or to withdraw the charges[16].This happened in the case of DPP v.Ephata Lema and five Others [17] the background in which is given above and in which the DPP took over a torture case by police from private prosecution only to stall. The attempt to continue with private prosecution was blocked by the High Court where Kyando, J. ruled that the DPP had absolute control over all criminal prosecution and in sensitive cases like this one it would not benefit interference by private individuals. This is unfair to say the least.

           

           It is this unfairness and injustice occasioned by such abuse of legal powers that has led to the challenge of powers of the DPP. In recent cases it has been insisted that the DPP can enter nolle prosequi to withdraw a case only in good cause. It has to be shown that in process of execution of his duties the DPP has taken into account public interest, the interest of justice and he is not in the process of abusing legal process. This was the position taken in the case of Mehboob Akber Haji and Another V.R[18]. In this case the DPP entered nolle prosequi in order to circumvent the ruling of the Resident Magistrate’s Court at Kisutu by which the accused persons were granted bail. Immediately after entering nolle prosequi at Kisutu the same DPP proceeded up to the District Court of Ilala at Kivukoni to file a same a similar case hoping that in that court, the accused persons would not be granted bail. In revisional proceedings Hon. Justice Kyando quashed the proceedings at the Kivukoni court on the ground that it was an abuse of the process of the court for the DPP to go about fishing for a court which would be more favourable to him. The appeal by the DPP to the Court of Appeal of Tanzania was dismissed. This holding consolidates the current view that the DPP can only abuse the powers of his office at his own risk as the individual can challenge such an abuse successfully.

         

             To conclude, Article 4 of the Tanzania’s constitution clearly spells out the separation of powers between the judiciary, the executive and the legislature. It vests legislative powers in parliament, executive powers in the president and judiciary in the courts. But, sometimes the demarcations between the three are not easily distinguishable, especially as far as the functions of the DPP are concerned. In accordance with section 91 (1) of the CPA, the DPP is empowered to withdraw charges for lack of sufficient evidence, but at the same time the state is given mandate to re-arrest the person set free by the court after the collection of sufficient evidence.

REFERENCES

STATUTES:

The Constitution of the United Republic of Tanzania of 1977, as amended from time to time [Cap.2 RE 2002]

The Criminal Procedure Act of Tanzania [Cap. 20 RE 2002]

BOOKS:

                                                                                                                    

Maina C.P, (1997), Human Rights in Tanzania, Richarz Publications-Service,       Germany.

OTHER MATERIALS:

MANUAL:

Mchome S.E, (1995), Criminal Law and Procedure Part Three, The Open University of Tanzania, Dar es Salaam

WEB MATERIALS:

http://en.wikipedia.org/wiki/Director_of_public_prosecutions (25.05.2009)

http://www.thefreedictionary.com/criminal+justice (25.05.2009)

http://www.nolo.com/definition.cfm (25.05.2009)

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[1] http://en.wikipedia.org/wiki/Director_of_public_prosecutions (25.05.2009)

[2] [Cap. 2 RE 2002]

[3] [Cap. 20 RE 2002]

[4] http://www.thefreedictionary.com/criminal+justice (25.05.2009)

[5] [Cap.20 RE 2002]

[6] http://www.nolo.com/definition.cfm (25.05.2009)

[7] (1962) EALR 673

[8] (1971) EALR 262

[9] (1944) 11 EACA 62

[10] [CAP 20 R.E 2002]

[11] [Cap.2 RE 2002]

[12] S.E, Mchome, Criminal Law and Procedure Part three, pg. 46

[13] Ibid, pp. 46-47

[14] [CAP 20 R.E 2002]

[15] [CAP 20 R.E 2002]

[16] P.C.Maina ,Human Rights in Tanzania,p.742

[17] (Civil Appeal No.142 of 1989)unreported

[18] High Court of Tanzania at Dar es Salaam, Economic Revision Application No. 3 of 1991   (unreported)