A general rule in criminal law is that once an offence has been committed, it is the duty of public prosecutors to prosecute the suspect and the right to institute a private prosecution is the exception. In Tonga, this right is provided for in section 197 of the Criminal Offences Act which states that “[a]ll prosecutions under this Act may be brought by the Attorney General or the person aggrieved.” Clause 31A(1)(b) of the Constitution of Tonga provides that the Attorney General shall “be in charge of all criminal proceedings on behalf of the Crown.” Unlike the relevant constitutional provisions in other common-law countries such as Vanuatu, Samoa, Uganda, Kenya, Botswana, Nigeria, Eswatini and Gambia which expressly provide that the Director of Public Prosecutions or Attorney General can take over private prosecutions, Clause 31A(1)(b) does not expressly state that. In Attorney General v Lavulavu the Supreme Court of Tonga held that Clause 31A(1)(b), if read in tandem with the common-law powers of the Attorney General, empowers the Attorney General to take over and discontinue a private prosecution. Private prosecution is an under-researched area in Tonga. The purpose of this article is to analyse this judgment and highlight ways in which it is likely to minimise the abuse of the right to institute a private prosecution in Tonga.

 

Keywords: Tonga; private prosecutions; Attorney-General; intervention