Sunday, November 29, 2020
Home Commentary Why stiffening private criminal prosecution?

Why stiffening private criminal prosecution?

The draft amendment Criminal Procedure Code (CPC) seeks, among others, to stiffen private criminal prosecution. The private prosecutor will be left with little or no rights if the draft bill becomes law.

The draft CPC amendment bill will undermine people’s right to initiate and continue with private criminal prosecution if it is allowed to pass to become law. What sense does it make for a Director of Public Prosecutions to be given the power to discontinue a private criminal prosecution?

The differences between the current CPC and the draft amendment of the CPC

The current Criminal Procedure Code thus provides that person, other than a public prosecutor or a police officer, who has reasonable and probable cause to believe that an offence has been committed by a person, may make a complaint thereof to a Magistrate who has jurisdiction to try or inquire into the alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to reside or be. The complaint may be made orally or in writing signed by the complainant, but if made orally shall be reduced into writing by the Magistrate and when so reduced shall be signed by the complainant.

The draft CPC provides, “any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he or she individually suffered in consequence of the commission of the said offence.”

So what one will deduce from this comparison is that the two are speaking different tunes wherein one is about the reasonable and probable cause of the offence as alleged, the other is talking about substantial and peculiar interest in the issue.

Which one is the best? People should be able to tell.

The CPC also provides: “The Magistrate, upon receiving a complaint under subsection (3) of this section, if he or she is satisfied that prima facie the commission of an offence has been disclosed and that the complaint is not frivolous or vexatious, shall draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence or offences alleged to have been committed by the accused.”

The draft CPC makes it mandatory for the private prosecutor to obtain a certificate from the DPP to initiate a private prosecution without which the case cannot go. The DPP has the power to reject the request and will state in writing the reasons for disallowing the private prosecution. The private prosecutor has to prove that the DPP has seen the affidavit. The draft makes it a requirement to consult with the DPP. It provides that “the process is endorsed by the Director of Public Prosecution that he or she has seen the information and has declined to prosecute the offence set out in the process.”

The 1997 Constitutional Provision on Private Prosecution

The 1997 Constitution provides that the Director of Public Prosecution has the power to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia. Also, to take over and continue, any criminal proceeding, that has been instituted by any other person or authority. Finally, to discontinue, at any stage before judgment is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority.

It maintains that the DPP shall not take over and continue any private prosecution without the consent of the private prosecutor and the court (see section 85 of the 1997 Constitution). This provision of the 1997 Constitution, in my considered view, is progressive and I think we should maintain it in our laws.

We all know, the Director of Public Prosecutions (DPP) is appointed by the President under section 84 (2) of the Constitution and his office is a public office.

Private criminal prosecution is a constitutional right which no person or authority should undermine or weaken. Section 86 of the 1997 Constitution provides for private criminal prosecution. It lay down the following:

“An Act of the National assembly may make provision for private prosecutions.”

The Act of the National Assembly that provides for private criminal prosecution is the Criminal Procedure Code. The current code (which the draft seeks to amend) under section 69 titled “Method of Instituting Criminal Proceedings”.

The laws provide that criminal proceedings may be instituted by a person, other than a public prosecutor or a police officer, making a complaint as provided in subsection (3) of this section and applying for the issue of a warrant or a summons in the manner herein mentioned.

In essence, the current code provides that the person who intends to do private criminal prosecution will have to take the complaint to a magistrate who must satisfy himself or herself that the charges are not frivolous or vexatious and there is a prima facie case. The current Criminal Procedure Code does not make the DPP the determining authority instead of the courts.

Here is what I abhor the most about the draft CPC:

The draft provides: “The Director of Public Prosecution may in respect of any private prosecution, apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case so that a prosecution for the offence in question may be instituted or, as the case may be, continued at the instance of the State, and the court shall make such an order.”

The importance of private criminal prosecution in a democratic country cannot be overstated because it gives private citizens the right to institute and do criminal prosecution.

The DPP is not likely to take up matters against the State or public officers. So if you stiffen private criminal prosecution, it would catalyze an easy route to endanger people’s right to access justice. If the State is not ready to prosecute, why not allow private citizens to carry on?

DPP should not be allowed to use his or her discretion to discontinue a private criminal prosecution. Any law that gives the DPP the power to discontinue a private criminal prosecution, in my view, should be regarded as a draconian law. This is because its primary objective is to discourage private criminal prosecution.

Private Criminal Prosecution should not be done at the whims and caprices of the Director of Public Prosecution. The rights of a private criminal prosecutor should be respected. Allow the courts to do their work. The procedure is clear on how to initiate private criminal prosecution, therefore, the DPP should not have the power to discontinue private criminal prosecution.

Be wise. Let us stand against this latest move to amend the aforesaid provision of the Criminal Procedure Code. If we allow it to go unchecked, then we will face the consequence.

Yankuba Jallow.

Final Year Law Student,

The University of The Gambia.

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