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Prosecutorial power and authority: the need to curb the abuse of the power and authority to abandon prosecution in Swaziland.
(2019) Mbatha, Simangele.; Khumalo, Khulekani.
Section 6 of the Swaziland Criminal Procedure and Evidence Act 67 of 1938 makes provision for the stopping of a prosecution. The wording of the section is structured in such a manner as to afford the prosecution too wide a discretion without setting in place checks and balances to foster accountability from the Director of Public Prosecutions department on the use of such power and authority, and as such, opens a door to the abuse of the power and the maladministration of justice. Not only do provisions of section 6 of the Act provide for more than one interpretation, but it is further argued that this section falls short of the spirit and purport of the Constitution of Swaziland, 2005, insofar as it negates the right to equal protection of the law as enshrined under section 20(1), particularly by failing to afford victims of crime any consultative audience before the decision to stop a prosecution is made, thus rendering the section ambiguous and unconstitutional. By embarking on a comparative study of the provisions as are found in South African statutes on the stopping of a prosecution, it is hoped that lessons will be drawn from the rich criminal jurisprudence and possibly incorporated to develop Swaziland law.