S v KUROTWI & ORS (1) 2011 (1) ZLR 185 (H)

Flynote

Constitutional law “ Constitution of Zimbabwe, 1980 “ Attorney-General “ right to withdraw criminal proceedings “ unfettered right to withdraw criminal proceedings at any stage thereof

Criminal procedure “ charge “ withdrawal “ Attorney-General's unfettered right to withdraw charge at any time, whether before or after plea

Headnote

The five accused were charged with fraud and indicted before the High Court. The prosecutor withdrew the charge against three of the accused before plea, with a view to using the three as witnesses against the remaining two accused. Counsel for the two remaining accused objected to the timing of the withdrawal of charges against the three accused persons. They argued that the case became pending in the court at the moment the charges were given to the registrar. That being the case, the withdrawal entailed an amendment of the original charge.

Held, that s 76(4)(c) of the Constitution, which applies to all courts, clothes the Attorney General with an unfettered absolute discretion to withdraw criminal proceedings he has instituted at any stage of the proceedings. Once the Attorney General has decided to exercise his discretion under that section, no person or authority, including the courts, can question his decision in this respect. If the prosecutor decides to withdraw the charge, the court must accept that decision. It does not matter whether or not the withdrawal is before or after plea.