Symposium |
Prosecutorial Discretion before National Courts and International Tribunals1*
1 Professor of Law, University of Botswana, Gaborone, Botswana; LL.B. (University of East Africa); M.C.J. (Howard University); LL.M. (New York University); J.S.D. (New York University); Certificate in International Law (The Hague Academy of International Law); Advocate, High Court of Uganda.
The decision to enforce the law against suspected offenders involves the exercise of independent professional judgment. This means that it cannot be made by hard and fast rules. It calls for an appreciation of a number of factors that must inform the decision. To do that, the prosecutor must have freedom to decide as he sees fit and according to his appreciation of those factors. This is discretion. However, the degree of discretion that the prosecutor possesses varies from country to country and from legal system to legal system. In some countries, prosecutors possess absolute discretion. They are not subject to the direction or control of any person or authority — not even the courts. In other countries, they are subject to the direction of the Minister of Justice or of Home Affairs or of the courts. The prosecutors of international tribunals possess much less discretion than their national counterparts. This is so because of the restricted nature of their mandate and the politically heterogeneous community that they serve. Nevertheless, whatever the degree of discretion that prosecutors possess, they must exercise it reasonably and in the public interest. They must also be accountable as to how they exercise it. For that reason, mechanisms must be in place to ensure that accountability.
* 1A version of this article was presented as a lecture in the Guest Lecture Series of the Office of the Prosecutor of the International Criminal Court, The Hague, Netherlands, 19 December 2003.