The applicant is a political
activist who has been organising political meetings for one Abednico Bhebhe, a
former Member of Parliament for Nkayi South Constituency. He was arrested on 17
June 2010 at his home in Nkayi at around 2300 hours. He alleges that he was
arrested without a warrant and was not informed of the reasons of his arrest
but was merely taken to Nkayi Police Station where he was detained that same
night.
The applicant was not taken to court
and when his legal practitioner was notified of the continued detention of the applicant
she visited him at Nkayi Police Station on 21 June 2010 where she was able to
talk to the applicant through the fence. That interview revealed that, even at
that stage, some four days after his arrest and detention, the applicant had
not been charged and did not know the reason for his arrest. He had not been
taken before a judicial officer but was being held in communicado.
As
the applicant remained in detention without charge at Nkayi Police Station with
the officer in charge of that station indicating that he had been arrested on
the instructions of the first respondent who was away and that it was only the
first respondent who could order his release, an urgent application was filed
in this court on behalf of the applicant on 24 June 2010.
A
provisional order was granted on the same date the interim relief of which
reads as follows:
“TERMS OF THE INTERIM RELIEF GRANTED
1. That 1st, 2nd,
3rd and 4th Respondents and any person or authority
acting or purporting to act through him and/or on his behalf, be and is hereby
ordered to take the applicant before a magistrate not later than 4:30pm on 25
June 2010.
2. That this Order shall stand
notwithstanding the noting of any appeal.”
That order was served, together
with the urgent application, on the police in Nkayi on 25 June 2010 at 3pm. By
then, it had been eight (8) days since the detention of the applicant.
Presumably in response to the court order, but certainly not in compliance with
it, the respondents released the applicant from custody. Counsel for the applicant
submitted that since then no further action has been taken against the applicant
and he has certainly not been prosecuted for any offence.
On 29 June 2010, days after
releasing the applicant from custody, the respondents filed opposition to the
application and the confirmation of the provisional order.
In his opposing affidavit, the
first respondent makes interesting revelations. The affidavit in question reads
in part as follows:
“1.0 I, Jairos Wilstaff Chiwona,
do hereby make oath and swear that; I am currently the Officer Commanding Nkayi
District and the first respondent in this matter and in that capacity I am
authorised to depose to this affidavit.
2.0 Ad Para 1-6 No issues
arising.
3.0 Ad Para 7-9
It is admitted. The Applicant was
arrested on the 17th June 2010 at about 2300 hours on the strength
of a warrant of apprehension issued by myself on the 17th June 2010.
A copy of which is attached and marked as Annexure 'A'. The warrant of
apprehension clearly indicates that the applicant was being arrested for C/s
15(1)(c) of the Public Order and Security Act [Chapter 11:17]. The
Applicant was arrested by number 054082J, Sergeant Nkala, and number 051531L,
Sergeant Makandizhe, who showed the applicant the warrant of apprehension and
informed him of the reason for his arrest. Nkayi CR18/6/10 was subsequently
opened and investigations commenced. It is thus not true that the applicant
was arrested without a warrant of apprehension and that he was arrested without
a charge. It is mischievous and deliberate misleading of the court by NOSIMILO
CHANAIWA to say that there was no warrant of apprehension and the applicant was
not informed of the reason of his arrest. As a matter of fact, the report by
officer in charge Nkayi Police Station indicates that NOSIMILO CHANAIWA was
aware of the existence of the charge and of the warrant of apprehension before
she made the founding affidavit on the 24th of June 2010….,.
4.0 Ad para 10 – 11
……,.
5.0 Ad para 12 – 16
…..,.
6.0 Ad para 17 – 21
…..,.
It is not true. From the date
of arrest to the 25th June 2010, which is the date the applicant was
released on remand, we have been making investigations into the case and these
investigations are yet to be completed.
They are likely to be protracted
since they will involve interviews with certain media houses that have
published information to the effect that the meeting took place. The law
provides for a person arrested with a warrant of apprehension to be detained
for a period not exceeding 14 days and to be brought before a judicial officer
as soon as possible. May it be pointed out that even before the application,
the police had already decided, and had actually made an effort, to place the
applicant on remand but unfortunately the magistrate, THABEKHULU DUBE, and the
prosecutor, MAXWELL HAPANYENGWI, decided to recuse themselves from the case
where they even denied the police the right to have the applicant appear before
them. As a result we had to release him out of custody. They even
refused to have a hearing of the case despite being shown the provisional court
order, which directed the police to take the applicant before a magistrate. Because
of the foregoing, the police complied with all legal procedures from the
time of arrest up to the time of the applicant's release. The question of costs
should therefore not be raised. I pray therefore that the application be
dismissed.
Thus sworn at Bulawayo this 29th day of June 2010.
Signed
Joram Wilstaff Chiwona
Signed
Commissioner of oaths.”
…,.
That the celebrated and time-honoured
principle of our criminal justice system that an accused person is innocent
until proven guilty is still part of our law is beyond doubt. So is the
principle that the police should investigate the alleged commission of a crime
and formulate a reasonable suspicion that an accused person has committed an
offence before effecting an arrest.
These legal and social mores have
been with us since time immemorial.
For a senior police officer,
commanding an entire district, to swear that a suspect was arrested, only for a
crime docket to be opened later, and for investigations to commence when the
suspect was already languishing in custody, is disturbing to say the least. It
means that at time of the arrest, the arresting detail could not countenance
any reasonable suspicion that the suspect had committed an offence.
Section 25(1) of the Criminal
Procedure and Evidence Act authorises a police officer to arrest without
warrant where “he or she has reasonable grounds to suspect” that a person has
committed a 1st Schedule or 9th Schedule offence.
In casu, the police have
maintained that this was an arrest with a warrant. It is therefore not
necessary to discuss the law on arrest without warrant. The warrant in question
has not been produced. It is unlikely that such warrant existed and where the
police have failed, despite having more than four months to spare, to produce
it, the reasonable inference is that it does not exist.
The deposition made by the first respondent
is shocking indeed.
He has confidently said that
where a warrant of apprehension has been issued by him, they are entitled to
detain the suspect for a period of up to fourteen (14) days. Regrettably, in
heads of argument filed on behalf of the respondents they could not refer me to
any such provision because it simply does not exist. It is not counsel's failure to dig up a law
applied by the police in Nkayi that is regrettable but the knowledge that
senior officers policing an entire region would believe that they have a legal
right to detain suspects for a period of fourteen (14) days when no such right
exists. To think that other suspects out there not so fortunate to afford legal
representation have their rights trampled upon as a result of the ignorance of
law enforcement agents is shuddering.
The position of our law relating
to the arrest of suspects is a simple one.
It is that before arresting a
person, except one who commits an offence in the presence of the arresting
detail, such arresting detail must formulate a reasonable suspicion that an
offence has been committed. Section
25(1)(b) of the Criminal Code talks of “reasonable grounds to suspect” that an
offence has been committed.
Section 33 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] allows a judge, magistrate or a
justice of the peace to issue a warrant of arrest of a suspect or for further
detention of a suspect arrested without a warrant on written application made
to him or her by the Attorney General, local prosecutor or an officer in charge
of a station holding a rank of at least Assistant Inspector. Even then, the applicant
must show that he has reasonable grounds of suspicion against that person.
Once arrested and brought to a
police station, section 32 of the Criminal Code demands that a suspect can only
be detained for a period not exceeding forty-eight (48) hours at a police
station unless he is brought before a judicial officer - who is the only
authority empowered to order a further detention.
Even where an arrest warrant is issued
section 34(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] requires
the suspect to be brought “as soon as possible before a judicial officer on a
charge of the offence” mentioned in the warrant.
The proviso to subsection (3) of section
32 of the Criminal Code makes it absolutely clear that no reckoning of time
shall allow the detention of a suspect for a period exceeding ninety-six (96)
hours before being brought before a judicial officer.
This procedure applies even in
respect of 9th Schedule offences as the twenty-one (21) day
detention allowed for such offences can only be ordered by a judicial officer.
Police officers do not have any authority whatsoever to detain suspects beyond
the prescribed period of time.
Officer Chiwona has sworn to an
affidavit that the warrant that he issued for the arrest of the applicant was
for contravention of section 15(1)(c) of the Public Order and Security Act
[Chapter 11:17]. This was despite the fact that the section in question was
repealed by section 282 of Act 23 of 2004, that is, the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. At the time he purportedly issued
the warrant, the section under which he wanted to arrest the applicant did not
exist. Even if I am wrong in my finding that the warrant in question did not
exist, reference to a repealed section of the Public Order and Security Act [Chapter
11:17] rendered it invalid and unenforceable.
If the applicant was arrested on
the strength of an invalid warrant, that arrest was therefore unlawful. As that
icon of English Law, LORD DENNING put it; “You cannot put something on nothing
and expect it to stand, it will collapse.”
In Chiyangwa v The State 2005 (1)
ZLR 163 HUNGWE J…, quoted with approval the following pronouncement in the
United States of American case of McNabb v United States 318 US 332 (1943)…., -
“A democratic society, in which
respect for the dignity of all men is central, naturally guards against the
misuse of the law enforcement process. Zeal in tracking down crime is not in
itself an assurance of soberness of judgment. Disinterestedness in law
enforcement does not alone prevent disregard of the cherished liberties.
Experience has therefore counselled that safeguards must be provided against
the dangers of the overzealous as well as the despotic. The lawful instruments
of the criminal law cannot be trusted to a single functionary. The complicated
process of criminal justice is therefore divided into different parts,
responsibility for which is separately vested in the various participants upon
who the criminal law relies for its indication.”
This is apposite in this case
because the requirement to bring suspects before a judicial officer within the
prescribed period is meant to curb the excesses of police officers who
erroneously believe they can keep suspects for fourteen (14) days without
charge. In fact, in this case, even the contemplated charge was in terms of a
non-existent section of the Public Order and Security Act.
In S v Makwakwa 1997 (2) ZLR 298….,
GILLESPIE J said -
“The lesson to be learned from
this is that delay in bringing a detained person before a magistrate will only
be countenanced when that delay is excusable on some objective ground.”
See also Kinfe v State SC60-98….,.
The respondents have alleged that
the applicant could not be brought to court because the magistrate and the
prosecutor recused themselves. It has not been explained how and why this
bizarre occurrence came to pass. I am of the view, however, that this excuse is
as lame as it is unsustainable. The police could have easily brought the applicant
to a magistrate in Bulawayo if indeed this unlikely occurrence happened.
They did not.
In any event, the tone of the
first respondent's affidavit suggests that this was done after the provisional
order had been issued directing that the applicant be brought before a magistrate.
By then, the applicant's detention was already unlawful, in fact, it was
unlawful from the very beginning and could not be cured by the belated
reference to the resident magistrate and the prosecutor for Nkayi.
In the result I make the
following order:
(1) That the provisional order
granted on 24 June 2010 be and is hereby confirmed.
(2) That there is no lawful basis
for the first and second Respondents to have the applicant detained in police
cells for a period exceeding that provided for at law.
(3) That respondents shall bear the costs of
this application on a legal practitioner and client scale, jointly and
severally, the one paying the others to absolved.
