Section
193(b) of the Constitution allows disciplinary tribunals to deal with
criminal matters, but only for purposes of enforcement or maintenance
of discipline, as it provides that the following may exercise or be
given criminal jurisdiction:
“…,
a court or tribunal that deals with cases under a disciplinary law,
to the extent that the jurisdiction is necessary ...
Section
193(b) of the Constitution allows disciplinary tribunals to deal with
criminal matters, but only for purposes of enforcement or maintenance
of discipline, as it provides that the following may exercise or be
given criminal jurisdiction:
“…,
a court or tribunal that deals with cases under a disciplinary law,
to the extent that the jurisdiction is necessary for the enforcement
of discipline in the disciplined force concerned.”
The
question that requires to be resolved in interpreting section 193(b),
therefore, is whether disciplinary processes, which aim to maintain
and enforce discipline in the Police Force, are interchangeable with
the ordinary criminal proceedings instituted by the State for the
purpose of maintenance of law and order, or are the two parallel
processes with different objectives and which are not meant to
meet?…,.
Section
34(9) of the Police Act [Chapter 11:10] provides as follows:
“(9)
A member who is found guilty of a contravention of this Act by an
officer shall not be regarded as having been convicted of an offence
for the purpose of any other law.”
The
import of this is to separate purely disciplinary proceedings
emanating from single trial officers from criminal matters which
consequences culminate in a criminal record….,.
In
line with section 193 of the Constitution, section 278 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] (the
Criminal Code) provides for the relationship between criminal and
disciplinary proceedings as follows:
“(1)
In this section, 'disciplinary proceedings' means any proceedings
for misconduct or breach of discipline against a public officer or
member of a disciplined force or a statutory professional body, or against
any other person for the discipline of whom provision is made by or
under any enactment;
'disciplined
force' means -
(a)…,.;
or
(b)
The Police Force; or
(c)….,.;
or
(d)…,.
(2)
A conviction or acquittal in respect of any crime shall not bar…,
disciplinary proceedings in relation to any conduct constituting the
crime at the instance of any person who has suffered loss or injury
in consequence of the conduct or at the instance of the relevant
disciplinary authority, as the case may be.
(3)…,.
Disciplinary proceedings in relation to any conduct that constitutes
a crime may, without prejudice to the prosecution of any criminal
proceedings in respect of the same conduct, be instituted at any time
before or after the commencement of such criminal proceedings.”…,.
(x)
Whether or not dual prosecution is allowed in terms of the Police Act
on the same allegations in view of section 278 of the Criminal Law
(Codification and Reform) Act and section 70(1)(m) of the
Constitution
Counsel
for the applicant argues that, once a member of the police has
appeared in disciplinary proceedings, he should not be called upon to
answer criminal charges in terms of the Criminal Code. Further, he
submits that, if a member has been charged under the Criminal Code,
he should not appear before disciplinary authorities on the same
grounds as that amounts to dual prosecution, contrary to section 45.3
of the Police Standing Orders which specifically bar dual
prosecution.
In
particular, he argues that this provision, section 45.3 of the Police
Standing Orders, should take precedence over an Act of Parliament,
specifically section 278 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (the Criminal Code) because section 278 of
the Code is a provision of general application which does not
override section 45.3 of the Police Standing Orders which is a
provision of specific application. Further, and in any case, he
submits, for a member of the police to face both disciplinary and
criminal prosecution would be inconsistent with the Constitution.
I
cannot agree with counsel for the applicant.
(i)
Firstly, the interpretation of the section 45.3 of the Police
Standing Orders and section 278 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (Criminal Code) hinges on the
interpretation of section 193(b) of the Constitution.
Counsel
for the applicant's proposition pre-supposes that in interpreting
section 193(b) of the Constitution, disciplinary processes are
interchangeable with ordinary criminal proceedings. This cannot be
correct. The processes have entirely different objectives and even
outcomes. Disciplinary processes aim to maintain and enforce
discipline in the Police Force, while criminal proceedings aim to
maintain law and order. Further, while our jurisprudence has adopted
a more flexible approach in that proof beyond a reasonable doubt may
be required where the gravity of the disciplinary offence and strong
criminal connotations exist (see
Mugabe & Anor v Law Society of Zimbabwe, 1994 (2) ZLR 356
(S)…,.),
nevertheless, disciplinary processes, as a general rule, require
proof on a balance of probabilities
(see
Olivier v Kaapse Balieraad 1972 (3) SA 485 (A). See also Law Society
of the Cape v Koch 1985 (4) SA 379 (C)).
Even
then, the courts have long recognised the difference between
disciplinary and criminal processes to the extent that a conviction
for a criminal offence is regarded as prima facie proof that a party
had committed a disciplinary offence. See Mugabe & Anor v Law
Society of Zimbabwe 1994 (2) ZLR 356 (S).
Certainly,
it has not been the position in our case law, or South African
jurisprudence, that conviction on a criminal offence excuses one from
disciplinary liability, or vice versa. Ultimately, disciplinary
processes do not generate criminal records while criminal proceedings
do. It is my view that it is precisely for that reason that section
193(b) of the Constitution carefully emphasizes that any criminal
jurisdiction given to a court or tribunal dealing with cases under
disciplinary law, does so only to the extent necessary for the
enforcement of discipline.
Therefore,
the applicant's seeming suggestion that there is congruence between
the disciplinary and criminal processes, which rules out one if the
other is resorted to otherwise a police officer suffers double
jeopardy, is misplaced and arises out of a mis-interpretation of the
law.
(ii)
Secondly, the applicant's proposition that subsidiary legislation
overrides an Act of Parliament is, in my view, also incorrect.
Rather,
the law is that any subsidiary legislation which is inconsistent with
an enactment is invalid to the extent of such inconsistency.
Therefore, in so far as the Police Standing Orders are inconsistent
with the Police Act, they are ultra vires and thus invalid.
The
principle of provisions of specific application overriding provisions
of general application, in my view, apply to legislation of the same
level and force. Thus, a provision of specific application in
subsidiary legislation cannot override a provision of general
application in an Act of Parliament. For these reasons, the specific
provisions of the Police Standing Orders cannot override the general
provisions of section 278 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23], let alone section 193(b) of the
Constitution.
In
any event, it seems to me that counsel for the applicant has
misconstrued the tenor and meaning of section 45.3 of the Police
Standing Orders which provide that:
“Any
member charged
with a criminal offence shall not be tried by a Board of Officers or
single officer, but shall be dealt with in accordance with the
provisions of the Criminal Procedure and Evidence Act [Chapter 59].”
The
operative phrase is “charged with a criminal offence.”
A
member charged with a disciplinary offence under the Police Act is
not charged with a criminal offence under the Criminal Procedure and
Evidence Act. This interpretation flows from section 193(b) of the
Constitution where disciplinary tribunals are endowed with power to
deal with criminal matters only for purposes of enforcement of
discipline, and not for any other purpose. The constitutional
dispensation in section 193 of the Constitution is then captured in
section 278 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23], which distils it further to provide that disciplinary
proceedings for any conduct which amounts to a crime shall not be a
bar to criminal prosecution, and vice versa. The Police Act captures
this same theme by providing that any outcome of disciplinary
processes shall not be construed as a conviction for criminal
purposes.
Therefore,
section 39(9) of the Police Act, section 278 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] and section 193 of the
Constitution rhyme with each other in creating a distinction and
separation between disciplinary and criminal proceedings and the
consequences thereof.
Thus,
section 193 of the Constitution does not clothe disciplinary
tribunals with the same criminal jurisdiction as the Constitutional
Court, the Supreme Court, the High Court and the Magistrates' Court
- disciplinary tribunals do not have power to try anyone with
criminal offences in terms of the Criminal Law (Codification and
Reform) Act.
Ergo,
there is no double jeopardy suffered by a member of the police force.
As
a member of the disciplined force, the applicant must be held to the
disciplinary standards required for such a force in disciplinary
proceedings, the outcome of which does not affect his status in terms
of the general criminal law. Where he is to be charged in terms of
the general criminal law, the Police Standing Orders provide that a
member will be dealt with, not in terms of disciplinary law, but in
terms of the Criminal Procedure and Evidence Act. That section 45.4
of the Police Standing Orders allows for an offence under the Police
Act, which might also constitute an offence under the general law, to
be referred to the Attorney General for a decision whether a member
should be tried by a Magistrate under the Police Act is merely in
line with section 29A, which permits disciplinary matters to be tried
by the High Court, the Magistrates Court, Board of Officers or Single
Officer depending on the gravity of the disciplinary offence in order
to conform with the sentencing jurisdiction accorded to each.
That
a disciplinary matter is referred to be tried in the Magistrates'
Court or High Court does not automatically transform it into a
criminal matter in terms of the general law. Rather, the Magistrates'
Court or the High Court will, in effect, be sitting as disciplinary
tribunals. That is why the law provides that such trials,
particularly those by Magistrates, must be conducted in a police camp
or at a police station. See section 46 of the Police Act [Chapter
11:10].
Further,
that section 35(1) of the Police Act requires trial officers to
follow as near as possible the proceedings prescribed in criminal
matters is, in my view, merely meant to promote good administration
of justice. The effect is to protect anyone appearing under
disciplinary proceedings from any prejudice that may follow improper
conduct of disciplinary trials, rather than to convert disciplinary
proceedings into criminal proceedings.
Double
jeopardy assumes that a member is facing either the same criminal or
disciplinary charge twice, which is certainly not acceptable.
Consequently, the law has carefully delineated the processes,
outcomes and purposes of disciplinary charges as opposed to criminal
charges. Therefore, it cannot be a correct interpretation that
section 70(1)(m) of the Constitution, in prohibiting subsequent
prosecution for an offence for which one was pardoned, acquitted or
convicted, bars disciplinary proceedings where a person has been
prosecuted under general law or vice versa.
This
position is bolstered by the definition in section 45.1 of the Police
Standing Orders which defines a criminal offence as any offence under
common law or statute other than an offence under the Police Act. As
a result, I do not agree with counsel for the applicant that once a
member is charged in police disciplinary matters for an offence which
may also constitute a criminal offence, section 34 of the Police Act
shall not apply. This is because the purpose of disciplinary and
criminal proceedings is not the same: the first is to instil
discipline and the second is to hold one accountable to society for
observance of societal norms which govern the social conduct.
My
view is consistent with the specific provisions of section 34 of the
Police Act which provides that an automatic review or appeal from the
decision of the single trial officer lies to the Commissioner General
rather than to the Magistrates Court, High Court or Supreme Court, as
distinct from the process in criminal matters. It was thus never the
intention of the legislature to intertwine disciplinary and criminal
processes. It is for these very reasons that I cannot agree with the
decision in Assistant Inspector Chibike v the Trial Officer &
Anor HC1832/15 and other like matters, which adjudged disciplinary
proceedings to be unlawful and barred them on the grounds that the
member was facing criminal charges in the Magistrates' Court.
Rather, it is my view that a member of the police, as a citizen of
Zimbabwe, is not immune to the normal vicissitudes that every other
citizen faces in terms of the Criminal Code, merely because he has
been disciplined in terms of the powers conferred on the Commissioner
General in section 8 of the Police Act, to command, superintend and
control the police service.
This
position resonates more logically with the constitutional and
legislative provisions. I therefore find that while the right to
freedom from dual prosecution is guaranteed by the Constitution, the
same Constitution, and enactments in terms thereof, place limitations
to the enjoyment of that right. As a consequence, the law sanctions
interference with that right in that prosecution for disciplinary
matters in the disciplined forces is allowed to the extent that it
does not affect the criminal liability of a member. Such a limitation
pursues the legitimate aim of instilling and maintaining the
discipline in a disciplined force, which is necessary in a democratic
society. This is because an un-disciplined force is a threat to
society. The police authorities must therefore be accorded the margin
of appreciation to protect society from an undisciplined force. The
requirements for discipline are balanced with the need to ensure
security for the citizenry and do not place an undue burden on
individual police officers.
