In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.

On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008.

The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.

The Issues

The issues for determination in this matter are as follows:

(1) The nature of the challenge before this Court....,.

Nature of Challenge before the Court

Counsel for the applicant submits that the arbitrator in casu decided the challenge before him without any substantive submissions having been made by the first respondent. He therefore contends that the latter is now estopped from making fresh submissions though its opposing papers before this Court. In other words, this Court must determine the challenge in the same form as was presented to the arbitrator, viz. without the benefit of any submissions from the first respondent.

Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] enjoins the Court “to decide on the challenge” referred to it by the challenging party without elaborating the procedure to be followed.

Be that as it may, I have no doubt that the Court is confined to determining the challenge on the grounds of challenge presented to the arbitrator and cannot entertain any fresh ground of challenge. However, I am not persuaded that Article 13(3) of the Model Law narrows the scrutiny of the Court, when examining and ventilating the issues before it, to the same submissions that were presented to the arbitrator.

I am not so persuaded for several reasons:

(i) Firstly, although the challenge before this Court may be likened to an appeal, it is not described as such and cannot therefore be regarded as an appeal stricto sensu. Even if it were to be so treated, it does not invariably follow that a party to an appeal cannot make fresh submissions on the grounds of appeal or the issues that constitute the subject-matter of the appeal.

(ii) Secondly, Article 13(3) of the Model Law does not define or fetter the powers of the Court as to the procedure to be followed.

In practice, the procedure that is adopted in the referral of arbitral matters to the Court is by way of ordinary application, and there is nothing in the Rules of Court to preclude the filing of submissions by any party to the arbitration proceedings in question.

(iii) Last but not least, to construe Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] in a restrictive manner would operate to constrict and offend the common law right to be heard which vests in every interested party, as embodied in the audi alteram partem rule, as well as the constitutional right to a fair hearing guaranteed by section 18(2) of the Constitution.

For all of these reasons, I am satisfied that the procedure for challenge before this Court cannot be curtailed in the manner propounded by counsel for the applicant.

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”).

In other words, this is an application for the hearing of the Court application on an urgent basis.

Both counsel agree the matter is urgent.

I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the Constitutional Court application is fatally defective in that it does not comply with section 24 of the Constitution.

Section 24 of the Constitution is peremptory.

This Court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.

Although the Court application does not, as it should, state explicitly that it is being made in terms of section 24(1) of the Constitution, it is quite clear from the papers that it is being made in terms of that subsection.

In my view, the applicant cannot proceed in terms of section 24(1) of the Constitution.

The Court application arises from proceedings in the Magistrate's Court and the applicant should have proceeded in terms of section 24(2) of the Constitution. Put differently, the Court application should have come to the Supreme Court by way of referral in terms of section 24(2) as opposed to a direct application in terms of section 24(1) of the Constitution.

The relevant part of section 24 of the Constitution provides as follows:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where, in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).

(4) The Supreme Court shall have original jurisdiction -

(a) To hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and

(b) To determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are/or have been available to the person concerned under other provisions of this Constitution or under any other law.”

Thus, section 24 of the Constitution is very explicit in the following two respects -

(1) A party alleging violation of a guaranteed Constitutional right can approach the Supreme Court directly in terms of section 24(1); and

(2) If the alleged violation of the guaranteed right has arisen in any proceedings in the High Court or in any court subordinate to the High Court, the Supreme Court can only adjudicate on the matter upon referral by the lower court in terms of section 24(2).

Thus, when a matter is before the High Court, or any court subordinate to the High Court, such as the Magistrate's Court as in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings. That Constitutional question cannot be brought to the Supreme Court by way of an application in terms of section 24(1) of the Constitution.

Section 24(3) of the Constitution expressly prohibits that.

If the lower court fails to act mero motu, or refuses, upon application, to refer the matter to the Supreme Court for reasons other than those permitted under section 24 of the Constitution, an applicant is then entitled to approach the Supreme Court in terms of section 24(1) of the Constitution: see Martin v Attorney-General 1993 (1) ZLR 153 (S).

Section 24(3) of the Constitution specifically prohibits the making of an application in terms of section 24(1) in respect of matters arising in any proceedings in the High Court or in any court subordinate to the High Court.

This Court has drawn the attention of legal practitioners to this provision in a number of cases.

MALABA JA…, dealt with this issue in some detail in the case of Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05. The learned JUDGE OF APPEAL had this to say at pp10-12 of the cyclostyled judgment:

“There are, however, two separate procedures prescribed in sections 24(1) and 24(2) of the Constitution by which redress of a contravention of the Declaration of Rights may be sought from the Supreme Court.

In this case, the question is whether the applicant ought to have used the procedure prescribed in terms of section 24(2) for the enforcement of the protection of the rights he claimed were contravened in relation to him.

In Mandirwhe v Minister of State 1986 (1) ZLR 1 BARON JA said that compliance with the procedure prescribed in section 24(2) of the Constitution was mandatory where there was litigation in progress and the determination of the question as to the contravention of the Declaration of Rights by the Supreme Court had a bearing on the decision by the High Court or the court subordinate to it on the matter in dispute in the proceedings in that court.

The learned JUDGE OF APPEAL said at 7F-8D:

'The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this Court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value. And, even where speed is not of the essence, there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Appellate Division [now the Supreme Court] without protracted litigation.

Subsection (1) contemplates the situation in which it is clear from the outset that the existence of a remedy depends on whether there has been (or is likely to be) a contravention of the Declaration of Rights, when the person alleging to be aggrieved is given the right to go direct to the Appellate Division.

Subsection (2) deals with a different situation; it contemplates that proceedings have been commenced in the General Division [now the High Court] or in a subordinate court in circumstances in which it was not anticipated that the question of a contravention of the Declaration of Rights would necessarily arise, since otherwise one expects subsection (1) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination, by the Appellate Division, of, in effect, a constitutional point of law without the necessity first to conclude the trial in the court of first instance and to come to this Court by way of appeal.

When the question is referred to this Court, the proceedings are merely interrupted; this Court answers the question but the matter must be concluded in the court a quo. The subsection does not authorise the proceedings to be transferred to this Court.'

Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.”

The learned JUDGE OF APPEAL went on to explain, in some detail, what constitutes a question arising in proceedings. The following is what he said at pp12-13 of the judgment:

“The question is whether there were proceedings in the High Court at the time that (the) question as to a contravention of the Declaration of Rights arose.

My view of the facts is that I must answer the question in the affirmative.

The words 'in any proceedings in the High Court' mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense, that, that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word 'proceedings' has a wider meaning in section 24(2) of the Constitution than 'goings-on' in court. There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute or withdrawal of the action or application: see Re Appleton French & Scrafton Ltd [1905] 1 Ch.D 749 at 753; Mundy v the Butterley Co Ltd [1932] 2 Ch.D 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of section 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The words 'if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights' imply that proceedings may take place in the High Court without any such question arising.”

The judgment in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 was followed in Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08, where, after referring to the above passage of MALABA JA, I had this to say…,:

“Thus, it would appear, from Tsvangirai's case supra, that, once proceedings are commenced in the High Court or any subordinate court, and a constitutional point arises from the pleadings or circumstances of the case, the constitutional point has arisen from proceedings in that court.”

The facts of this case are that the applicant was placed on remand by the fifth respondent. The Court takes judicial notice of what constitutes a remand.

It is the first formal procedure by a court to commence a criminal trial. There has to be a sufficient legal basis for a court to place an accused person on remand.

The applicant contends, that, there was no legal basis to place her on remand.

She makes the following averment in paragraph 6 of the founding affidavit:

“(The fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at Rotten Row Magistrates Court who is cited herein in his official capacity as the magistrate who I believe unlawfully purported to remand me in custody without considering the unlawful circumstances that led to my appearance before him. His address for service is care of Rotten Row Magistrates Court, Harare.”

The applicant cites the fifth respondent in his official capacity as the person who presided in proceedings as a result of which the applicant was remanded in custody. The applicant contends that remanding her in custody was unlawful and violated her constitutionally guaranteed right.

On these facts, clearly, the question of the alleged violation of the applicant's constitutional guaranteed rights, in particular the allegation of unlawful remand, arises from the proceedings in the Magistrate's Court before the fifth respondent.

The argument by the applicant's counsel, that the issue of the contravention of the Declaration of Rights was not specifically raised during those proceedings is simply untenable. Indeed, a similar argument was raised in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and was dismissed by this Court.

Thus, quite clearly, the Constitutional application should have been brought to this court by way of referral in terms of section 24(2) of the Constitution and failure to do so is fatal to the application.

As I have already stated, the parties are in agreement that this matter is urgent. Counsel for the respondents had indicated, that, while he accepted that the matter was urgent, he had intended to raise the issue of non-compliance with section 24 of the Constitution at the actual hearing of the Constitutional Court application.

The applicant's counsel indicated that they would prefer the matter to be set down before the full Constitutional Court and the issue of the non-compliance with section 24 of the Constitution be determined then.

In my view, following that course would not be in the best interest of the applicant as that would lead to further unnecessary delay in the determination of the issues that she raises.

The previous decisions of this Court on this point are very clear and setting this application down before a full Constitutional Court is an exercise in futility.

Justice will not be served by following a road that leads nowhere.

Indeed, I would have considered setting down the matter in the Constitutional Court for determination of the issue if the applicant's counsel had wished to argue that both Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08 were wrongly decided.

However, that is not his stance.

The applicant's counsel admitted that he has not read the above judgments. He did not ask for an opportunity to familiarise himself with those judgments and then reconsider his position.

Given this attitude, setting this matter down for argument before the full Constitutional Court will be, as I have already stated, an exercise in futility and will cause a further delay in the finalisation of the applicant's search for a determination by this Court.

If the applicant wishes this matter to be determined by the Supreme Court she should proceed in terms of section 24(2) and not section 24(1) of the Constitution.

It is a matter of regret that an opportunity to determine this application on an urgent basis has been squandered by the crass incompetence and sheer ineptitude of the applicant's legal practitioners, who do not appear to have taken the trouble to peruse the provisions of section 24 of the Constitution before committing pen to paper and drafted this application.

In my view, the best way forward is to dismiss this Chamber application, and, hopefully, the applicant's legal practitioners will familiarise themselves with the provisions of section 24 of the Constitution and the judgments of this Court before advising the applicant on the best course to follow....,.

The Chamber application is dismissed.

The applicant should comply with the provisions of section 24 of the Constitution before this matter can be set down as a Constitutional application.

There will be no order as to costs.

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution.

THE ORDER OF THE COURT

On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:

“The Court unanimously concludes that the State, through its agents, violated the applicant's constitutional rights protected under sections 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.

Accordingly, it is ordered that the criminal prosecution against the applicant, arising from the facts set out in proceedings in the Magistrates Court Harare, in the case of the State v Manuel Chinanzvavana & Eight Ors, case number 8801-5/08, is stayed permanently.

The reasons for this order will be furnished in due course. The question of the costs of the application will be dealt with in the judgment.”

THE FACTS

The reasons for the order are now given.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.

Meaning of section 15(1) of the Constitution

The first point taken, on behalf of the applicant, was that the treatment to which she was subjected by State security agents, prior to the charge being laid on her, constituted a contravention of section 15(1) of the Constitution.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's dignity and physical integrity from the prohibited treatment at the hands of public officials.

Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom [1996] 23 EHRR 413…,. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State - even in a State of public emergency: see section 25 of the Constitution.

The provision is subject only to the exercise by Parliament, when properly constituted, of the power under section 52 of the Constitution to amend, add to, or repeal any provision of the Constitution upon strict compliance with the procedure prescribed for the purpose: Mike Campbell (Pvt) Ltd v Ministry of Lands 2008 (1) ZLR 17 (S).

It was in the exercise of the power conferred on it by section 52 of the Constitution, that Parliament, by means of Act No.30 of 1990 (Amendment No.11) and Act No.9 of 1993 (Amendment No.13) provided that six specific instances of treatment of individuals by the State shall not be held to be in contravention of section 15(1) of the Constitution. These are:

(i) Treatment to prevent the escape from custody of a person who has been lawfully detained (section 15(2));

(ii) Moderate corporal punishment inflicted upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis (section 15(3)(a));

(iii) Moderate corporal punishment inflicted on a male person under the age of eighteen years in execution of the judgment or order of a court (section 15(3)(b));

(iv) Execution of a sentence of death in the manner prescribed in section 315(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (section 15(4));

(v) Delay in the execution of a sentence of death (section 15(5)); and

(vi) Delay in the execution of any sentence imposed by a competent court (section 15(6)).

The qualities of absoluteness in the sense of being an unconditional prohibition and non-derogability articulate the notion that the prohibition is one of the most fundamental standards of a democratic society. They are also designed to ensure that the prohibition produces a deterrent effect in that it signals, in advance, to all public officials and private individuals, that it is an absolute value from which nobody must derogate.

The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.

The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct.
No exceptional circumstance, such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security, can justify infliction of torture, or inhuman or degrading treatment.

There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture, inhuman, and degrading treatment of a person in the custody of a public official.

That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents is a restatement of the principle that the law, which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.

There is a distinction intended to be made, under section 15(1) of the Constitution, between torture on the one hand and inhuman or degrading treatment on the other.

The distinction between the notion of torture and the other two concepts lies principally in the intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim, intentionally, and for a specific purpose. Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture, or inhuman or degrading treatment depends on the circumstances of each case.

The definition of torture often adopted by courts, as a minimum standard by which a determination of the question whether torture has been committed or not, is that provided under Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (hereinafter referred to as “the UN Convention on Torture”).

Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) provides that:

“…, torture means, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not indicate pain or suffering arising only from, inherent in, or incidental to lawful sanction.”

The definition of torture, provided in Article (1)(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), is consistent with the interpretation by the Court in its case law of the concept as used in section 15(1) of the Constitution.

It is important to note that, in terms of the definition, the torture must be inflicted for the purpose of obtaining information or a confession. This is the mischief at which the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is aimed.

Inhuman treatment, is treatment which, when applied or inflicted on a person intentionally or with pre-meditation, causes, if not actual bodily injury, at least intense physical or mental suffering to the person subjected thereto and also leads to acute psychiatric disturbance during interrogation: Ireland v United Kingdom [1978] 2 EHRR 167…,.

Degrading treatment, is treatment which, when applied, to or inflicted on a person, humiliates or debases him or her showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the person's moral and physical resistance.

The relevant notions in the definition of degrading treatment are those of humiliation and debasement. The suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate or fair treatment: Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

It follows, from the definition of the relevant concepts, that not every treatment which causes some discomfort to the person in detention violates section 15(1) of the Constitution; otherwise no one could be arrested, detained, and interrogated in the investigation of crime. The treatment must reach the minimum level of severity before it constitutes a breach of the absolute prohibition under the section.

The assessment of the minimum level of severity is relative.

The question whether or not the requisite threshold of breach of the fundamental right has been reached in a particular case is determined by the consideration of such factors as the nature and context of the treatment; manner and method of its execution, as well as the duration of the treatment; its physical and mental effects; and, in some cases, the age, sex and state of health of the victim: Ireland v United Kingdom [1978] 2 EHRR 167…,.; S v Ncube & Ors 1987 (2) ZLR 246 (S)…,.; Soering v United Kingdom [1989] 11 EHRR 439…,.; Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

APPLICATION OF SECTION 15(1)

Applying the principles of the law on what constitutes a contravention of section 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant's fundamental right not to be subjected to torture, or to inhuman or degrading treatment.

The reasons for the decision are these:

The repeated beatings on the soles of the applicant's feet with a piece of a hosepipe and a metal object using severe force, on each of the two occasions she was under interrogation, constitute torture.

Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”: AMRIS K, “Long Term Consequences of Falanga Torture”, Torture Vol.19 Number 1 IRCT 2009.

Forcing the applicant to kneel for a long time, on mounds of gravel, whilst being interrogated, falls within the meaning of torture.

The treatment to which she was subjected was premeditated.

The severe pain and suffering she was forced to endure was intentionally inflicted. It was in aid of the interrogation the purpose of which was the extraction, from her, of information on the assistance her organisation was suspected of having given to Ricardo Hwasheni to enable him to undergo military training outside the country.

The prolonged periods of solitary confinement, incommunicado, on the occasions she was not being interrogated, constitutes inhuman and degrading treatment; S v Masitere 1990 (2) ZLR 289 (S)…,.

It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under section 15(1) of the Constitution. It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual's physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of section 15(1) of the Constitution.

It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated.

The treatment was intentionally applied and caused the applicant mental suffering.

She was also subjected to inhuman and degrading treatment when she was blind-folded and driven, at night, to an undisclosed destination under threat of unspecified action.

The treatment was intended to induce in her fear and anguish. She said she feared for her life when the motor vehicle was stopped in the middle of the night at the place she could not see. She heard the sound of people shuffling about as if preparing to execute her.

The feelings of fear and anguish, generated in her by the treatment, had the intended effect of debasing her.

The purpose of the prohibition of acts violative of section 15(1) of the Constitution is to protect human dignity and physical integrity. Any recourse to physical force against a person in the custody of a public official, which is not rendered strictly necessary by his or her conduct, diminishes his or her dignity and implicates a violation of the prohibition.

FIRST GROUND

Effect of Pre-charge Abduction and Violation of Section 15(1) on Criminal Prosecution

The grounds on which the relief sought were premised on the court making a finding that the applicant was kidnapped from home and subjected to ill treatment in the form of torture, inhuman and degrading treatment by State security agents prior to being charged with the criminal offence by the public prosecutor.

The general effect of the contention advanced on the first ground was that the Court should not countenance a prosecution of an accused person for a criminal offence in circumstances in which he or she was kidnapped and subjected to torture, or inhuman or degrading treatment by public officials exercising executive authority prior to the charge being brought against him or her.

The argument was that the institution of criminal proceedings, in the circumstances, would be an abuse of court process.

The question for determination is whether ill-treatment, in breach of section 15(1) of the Constitution, prior to the charge being brought against the victim, taints the subsequent decisions to lay the charge and institute criminal prosecution against him or her regardless of the question whether the requirements of section 13(2)(e) of the Constitution have been complied with or not.

The decision of the Court on this point is that ill-treatment, per se, has no effect on the validity of the decisions to charge the victim with a criminal offence and institute prosecution proceedings against him or her.

It is the use of the fruits of ill-treatment which may affect the validity of the decisions depending on compliance or non-compliance, by the public prosecutor, with the requirements of permissible deprivation of personal liberty under section 13(2)(e) of the Constitution.

The reasons for the decision are these:

The requirements which a public prosecutor has to bear in mind and comply with to make a valid decision to charge an accused person with a criminal offence and institute a criminal prosecution on the charge are prescribed by section 13(1) of the Constitution.

The section recognises that every person has a fundamental right to personal liberty.

It then makes provision for the protection of the right against interference by the State by declaring that no person shall be deprived of personal liberty. Recognising the principle that the right to personal liberty is not an absolute right, the section goes on to specify cases listed as exceptions to the prohibition in which deprivation of personal liberty is permissible upon strict compliance with the prescribed requirements.

The requirements of permissible deprivation of personal liberty, in the case of a person suspected of crime, are in section 13(2)(e) of the Constitution. They constitute the standard by which the validity of the decision by the public prosecutor to charge the accused person with the criminal offence, and institute criminal proceedings, is to be measured.

The effect of prohibition of arbitrary deprivation of personal liberty is the promotion of lawful arrest or detention and prosecution of persons suspected of having committed crimes. It is the deprivation of personal liberty in connection with the criminal justice process that is relevant to the determination of the issues raised.

Once a measure, such as a criminal prosecution, is based on a decision to charge the accused person with the criminal offence which complies with the requirements of permissible deprivation of personal liberty it is a lawful measure. It cannot be a subject of an order of permanent stay on the ground that the accused person was kidnapped and subjected to torture, or inhuman or degrading treatment before the charge was brought against him or her. The ill-treatment to which the accused person would have been subjected would have taken place when he or she was in a state of lawful deprivation of personal liberty. It is usually inflicted after the person has been deprived of personal liberty by arrest and detention.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Failure to comply with the requirements for a valid decision to charge the accused person with a criminal offence, and the institution of criminal prosecution proceedings against him or her, implicates a violation of the principle of legality or rule of law enshrined by section 18(1) of the Constitution.

The principle of legality requires that every decision or act of a public official which affects the rights or interests of an individual must be in accordance with an existing law otherwise it violates the rights of the individual concerned.

The requirements for permissible deprivation of personal liberty are part of the protection of that right. Compliance with the requirements is consistent with the principle of the rule of law. In that way, the public prosecutor and the Court are prevented from acting arbitrarily.

Section 18(1) provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”

The provisions of sections 13(1) and 15(1) of the Constitution protect two separate but related fundamental human rights. One right is not constitutive of the other. They are autonomous and under protective requirements peculiar to their nature and ambit. That means that the rights may be violated independently of each other.

The infliction of torture or inhuman or degrading treatment on an accused person affects his dignity and physical integrity. It does not in itself affect his or her criminal liability. The other right protects the individual from arbitrary arrest, detention and prosecution by agents of the State.

The same person may be a victim of ill-treatment by law enforcement agents whilst at the same time he or she is a villain having committed a criminal offence against another person. The applicability of a particular constitutional provision should turn on the reasons it was included in the Constitution and the evils it was designed to eliminate.

The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.

A charge is an official act by which notification is given by the competent authority of an allegation that the accused person has committed a criminal offence. In Attorney General v Blumears & Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty, under section 13(2)(e) of the Constitution, are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime.”

It is the existence, or absence, of reasonable suspicion of the accused person having committed the criminal offence he or she is charged with which provides an answer to the question whether pre-charge ill treatment of an accused person had anything to do with the institution of the criminal prosecution.

The purpose of instituting criminal proceedings against an accused person, on reasonable suspicion of having committed the criminal offence with which he or she is charged, is to prove the circumstance of his or her guilt. It is also to give effect to the law which proscribes the conduct he or she is charged with as a crime.

The decision to charge the accused person with the criminal offence and prosecute the crime would be based on the evidence of acts he or she would be suspected of having committed before he or she was subjected to ill-treatment by law enforcement agents. The prosecution would be directly connected with the crime.

If each time an accused person was subjected to torture, or inhuman or degrading treatment prior to being charged with a criminal offence, the Court was obliged to order a permanent stay of the criminal prosecution, the requirements of permissible deprivation of personal liberty, which form the standard for the validity of the decision by the public prosecutor to institute the criminal proceedings against the accused person, would be reduced to mere words. It would implicate the principle of legality which requires the Court to uphold conduct which is in accordance with law.

The availability of the procedure under section 13(2)(e) of the Constitution means that where the criminal prosecution meets all the requirements of permissible deprivation of the accused person of liberty, it cannot be impugned notwithstanding the fact that the accused person was kidnapped and subjected to torture or inhuman or degrading treatment before the charge was brought against him or her.

Section 24(4) of the Constitution provides a remedy to the individual whose fundamental right has been violated.

No right to personal liberty would have been violated in relation to the accused person by the institution of criminal proceedings in the circumstances.

An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected, on untainted evidence, of having committed.

That does not mean that the accused person has no remedy for the pre-charge contravention of fundamental rights.

Kidnapping a person is a criminal offence.

Compensation, under section 13(5) of the Constitution, is payable to a person who is unlawfully arrested or detained. It is also an appropriate remedy for the redress of a contravention of a fundamental right available to the Court in the exercise of the wide discretionary power under section 24(4) of the Constitution.

A finding that the decision by a public prosecutor, to charge an accused person with a criminal offence, was based on reasonable suspicion of his or her having committed the offence effectively means that the criminal prosecution is lawful. It means that there is evidence on which proof of the commission of the acts defined as the crime with which the accused person is charged would be based at the trial. It also means that the wrongful conduct of ill-treating the accused person prior to being charged with the criminal offence had nothing to do with the decisions to institute and conduct the criminal prosecution; S v Harington 1988 (2) ZLR 344 (S); Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 (S); Mthembu v The State 2008 SCA 51…,.

As a matter of law and fact it is clear that where reasonable suspicion of the accused person having committed a criminal offence existed at the time the public prosecutor charged him or her with the offence in question and commenced criminal prosecution proceedings, the prosecution must be taken to have been properly instituted regardless of the fact that the accused person was subjected to torture, or inhuman or degrading treatment prior to the charge being brought against him or her. The charge, and prosecution, would be a product of the consideration, by the public prosecutor, of evidence on the conduct of alleged wrong doing by the accused person.

There is nothing in the Constitution which requires the Court to permit an accused person, reasonably suspected of a criminal offence and properly charged, to escape prosecution because he or she was subjected to torture or inhuman or degrading treatment prior to the charge being brought against him or her.

The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence on account of having been subjected to torture, or inhuman or degrading treatment before the charge was laid on him or her.

Giving effect to the proposition advanced on behalf of the applicant would violate the constitutional principle of proportionality.

The principle requires that a fair balance be struck between the interests of the individual, in the protection of his or her fundamental rights and freedoms, and the interests of the public, in having those reasonably suspected of having committed criminal offences tried, and, if convicted, punished according to law.

Acting in the manner suggested by the applicant would mean that the purpose of criminal law is to protect the interests of a person suspected of crime at the expense of the victim and society.

That would be tantamount to providing a guarantee of immunity from prosecution to a person reasonably suspected of having committed a criminal offence in every case in which proof is produced that he or she was kidnapped and subjected to torture or inhuman or degrading treatment by agents of the State prior to being charged with a criminal offence. The victims of crime would be denied the right to the protection of the law.

Justice demands, however, that each man and woman be given what is due by his or her conduct.

It would also mean that one person who fell into the hands of law enforcement agents, who decided to break the law and maltreat him or her, would escape prosecution whilst another person who fell into the hands of law abiding law enforcement agents would not. That would be despite the fact that they were both reasonably suspected of having committed the criminal offences with which they were charged. Each would have known that his or her act was criminal. He or she would have committed the act before being placed in the custody of law enforcement agents.

Where there is no direct connection between the fruits of the torture or inhuman or degrading treatment to which the accused was subjected and the institution of the criminal prosecution, justification for an order of permanent stay of the criminal proceedings cannot be found in the pre-charge ill-treatment of the accused person. If the order were made it would be on the ground that there was no reasonable suspicion of the accused person having committed the offence with which he or she was charged.

In urging the first ground on the Court, counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A).

It is necessary to briefly look at the circumstances in which the decision was made to see whether the principles relied upon in that case are applicable to the facts of this case.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53.

There is no doubt that the contention urged on the Court was animated by the principles enunciated in S v Ebrahim 1991 (2) SA 553 (A).

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms.
They do not provide a basis for challenging the validity of decisions by a public prosecutor to charge a person who is resident in the area of jurisdiction of the court with a criminal offence which it has jurisdiction to hear.

The principles are not an answer to the question whether a court, whose duty is to protect fundamental human rights, can decline jurisdiction in a case in which the accused person complains that his or her fundamental rights have been contravened by the institution of criminal prosecution proceedings after he had been kidnapped and subjected to torture, or inhuman or degrading treatment by agents of the State within the area of jurisdiction of the court.

They are not applicable to facts of a case the consideration of which has to take into account the existence, or absence, of reasonable suspicion, by the public prosecutor, of the accused person having committed the criminal offence with which he or she has been charged.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A) cannot be transposed and applied to facts of cases which do not raise for determination questions of breach of boundaries of criminal law jurisdiction.

Different principles apply in the determination of the issues raised by the facts of this case.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty.

Needless to say the last two principles would not form part of the law applicable to the facts of this case.

The analogy was inappropriate.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

Deriving from the cases of foreign abduction the proposition that in every case in which the accused person was subjected to torture, or inhuman, or degrading treatment before being charged with the crime the Court is obliged to order a permanent stay of the criminal prosecution was an ingenious argument which was unhelpful in the determination of the issues.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

The argument that a criminal prosecution following a pre-charge illegal arrest, detention and infliction of torture or inhuman or degrading treatment constituted abuse of process requiring a stay of proceedings would have to contend with the requirements of section13(2)(e) of the Constitution and show the fundamental right or freedom guaranteed by the Constitution that has been violated by the institution of the criminal prosecution in those circumstances.

It is not necessary to consider the argument in this case.

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

Equally unlawful is the occupation and the take-over of the applicant's property in order to induce Gary Denis Godfery (the deponent) to surrender himself to the police. The police have a wide range of lawful means of effecting a lawful arrest including the use of minimum force to achieve their objective.

In the present matter their actions are understandable though unlawful.

They are faced with a situation where a suspect is evading and avoiding arrest, this on its own, is frustrating. What is even more frustrating is the fact that while he does not voluntarily surrender himself to the police for questioning, he decides to avail himself to his legal practitioners only and no effort is made by his legal practitioner to bring him to the police station. Such actions by the legal practitioners borders on an attempt to defeat the course of justice. It is, therefore, improper.

Gary Denis Godfery's actions are not the actions of a law abiding citizen. In his affidavit quoted above he makes it clear that the applicant does not intend to voluntarily surrender the farm to its owner, that is, the State.  It is clear therefore that the applicant, through, Gary Denis Godfery, is not prepared to be governed by the laws of the land, hence his defiance. He is not prepared to be questioned by the police. The laws of this country, and, indeed, all over the world, require everybody to co-operate with the law enforcement agents. In casu, we have a suspect who prays for an order preventing the police from carrying out investigations where a possible offence has been committed. This is absurd, what is even more absurd is that his lawyer seems to be ill-advising him to avoid questioning by the police.

Counsel for the applicant argued that the police have been arresting white farmers during weekends without charge.

While I am not privy to such arrests, the correct position is that Gary Denis Godfery, or anyone for that matter, is not exempted from arrest by virtue of his race. His race is not by any stretch of imagination superior to other races. This, unfortunately, is his thinking. Police and prison cell walls recognise no colour, therefore, that argument is untenable. The police are within their right to arrest Gary Denis Godfery wherever and whenever they find him. The rule of law demands equal treatment before the law irrespective of colour. Police should not occupy the farm so as to frustrate its operations, but, should do so for the purposes of apprehending Gary Denis Godfery who seems to be eluding them.

In paragraph 3 of the interim order, the applicant prays that in the event that the first respondent decides to proceed against Gary Denis Godfery, they should do so by way of summons.

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 1^st, 2^nd, 3^rd and 4^th 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 17^th June 2010 at about 2300 hours on the strength of a warrant of apprehension issued by myself on the 17^th 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 24^th 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 25^th 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 29^th 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 1^st Schedule or 9^th 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 9^th 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.

The applicant was not brought to court within forty-eight (48) hours or as soon as possible as provided by the law. In fact, he was not brought to court at all while the first respondent wallowed in the mistaken view that he was entitled to detain him for a period of up to fourteen (14) days.

At the end of the hearing, the application was dismissed and it was indicated that reasons for the decision would follow in due course.

These are the reasons.

This matter was referred to the Supreme Court by the Magistrate in terms of section 24(2) of the Constitution of Zimbabwe which provides as follows:

“24 Enforcement of protective provisions

(1)…,.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The referral came about in the following manner.

On 8 February 2012, the applicant, who is a registered legal practitioner, appeared before the Magistrate in Gweru in response to a summons to answer a charge of contravening section 16(2)(b) of the Public Order and Security Act [Chapter 11:17]. The offence was allegedly committed on 25 June 2005. When the charge was put to him, the applicant did not plead to it but instead made an application for the matter to be referred to the Supreme Court in terms of section 24(2). It was his intention to seek an order:

“For a permanent stay of prosecution in terms of the Constitution of Zimbabwe in section 18(2) on the basis that my right to a fair trial within reasonable time has been violated.”

He alleged that the charges emanated from an incident which occurred on 25 June 2005 in Zaka and that a warned and cautioned statement was recorded in July of the same year. The delay in bringing him to trial amounted to six years and eight months. The allegation was that the delay was attributable to the conduct of the State because he resides in Masvingo and has never removed himself from the jurisdiction of the courts. He averred that nothing could have been done by him to assert his rights especially as the matter was not brought to court on a remand hearing.

He alleged, further, that 'the only [State] witness who is available' had his statement recorded on 26 June 2005. According to him, the investigations were then complete and the prosecution ought to have taken place, at the latest, in December 2007 when authority was granted by the Attorney General to prosecute.  He alleged that the failure by the State to bring him to trial within a reasonable period constituted a violation of his constitutional right enshrined in section 18 of the Constitution.

The prosecutor, in response, submitted that the delay 'was not a deliberate act by the State.' In the first place, one of the State witnesses had died. Secondly, there was, on record, a letter dated 10 August 2008 wherein the applicant had requested that he be prosecuted by a person who did not know him; and, thirdly, the applicant is a Deputy Minister tasked with national duties and the police were having difficulties in effecting personal service of the summons on him. After the authority to prosecute was granted by the Attorney General, in 2007, there was a shortage of resources and transport.

The prosecutor further alleged that when the matter was due to be heard, the Director of Public Prosecutions directed that the trial be heard in Gweru and not Masvingo. Most of the court officials declined to deal with the matter because they knew the applicant on professional grounds, and, even on the date of the hearing, two court officials refused to entertain the matter on professional grounds.   Accordingly, the delay could not be wholly attributable to the State.

No evidence, whether on affidavit or viva voce, was led by the applicant in support of his allegations.

This is totally unacceptable. In S v Banga 1995 (2) ZLR 297 this Court remarked as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement from the bar, and then to point soley to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay.

Such a fundamental omission on the part of the defence is fatal to the success of the application.”…,.

It goes without saying that a delay of seven years in prosecuting a criminal charge is presumptively prejudicial and would, generally speaking, trigger an inquiry by this Court into the constitutionality of the delay.

See Gadzanai Nkomo & Anor v The State SC52-06.

However, the applicant has placed no evidence before the Court from which it can be concluded that the delay in bringing him to trial is totally attributable to the State, has caused him prejudice, and is a violation of his right to a fair trial. I stress here that the absence of evidence is fatal to the application. In S v Banga 1995 (2) ZLR 297…., it was held that the absence of viva voce evidence could be fatal to an applicant's case because it;

“completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused,…, and that it has impaired his ability to exonerate himself from the charge due to death, disappearance, or forgetfulness of potential witnesses.”

Finally, it is necessary to address the alleged breach of the applicant's right to liberty contrary to section 49 of the Constitution. That section provides as follows:

“(1) Every person has the right to personal liberty, which includes the right -

(a) Not to be detained without trial; and

(b) Not to be deprived of their liberty arbitrarily or without just cause.

(2) No person may be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

My reading of these provisions is that they have no bearing whatsoever on the applicant's present situation. He has not been detained without trial or deprived of his liberty arbitrarily or without just cause.  And he certainly has not been imprisoned merely on the ground of his inability to fulfil a contractual obligation.

It is abundantly clear, therefore, that the applicant has absolutely no basis for the complaint that his right to liberty, under section 49 of the Constitution, has been violated in any way.

The outline of the case for the prosecution, from which the particulars of the charge were taken, read as follows:

“(1) The accused in this case is Douglas Togarasei Mwonzora, a male adult aged 41 years of Nyamubarwa Village, Chief Saunyama, Nyanga and is the Honourable Member of the House of Assembly from the Movement for Democratic Change (Tsvangirai faction) for Nyanga North Constituency.

(2) The complainant is the State.

(3) On 21^st day of March 2009, between 1300 hours and 1700 hours, and at Ruwangwe Growth Point, Nyanga, accused, being a third guest speaker at a political gathering of the Movement for Democratic Change (Tsvangirai) Party, made statements concerning the President of the Republic of Zimbabwe, His Excellency Robert Gabriel Mugabe, well knowing that there is a real risk or possibility that those statements may engender feelings of hostility towards or cause hatred, contempt or ridicule of the President in person or his office.

4. The accused, during his speech, uttered words to the effect that President Mugabe is a goblin and will vacate office running as quoted in Shona, 'President Robert Mugabe chikwambo uye achamhanya'; literally meaning that 'President Robert Mugabe is a goblin and he will run'; a statement that will engender the President in person. (sic)

5. To ensure that the President Mugabe's goblin statement is understood by the gathering, the accused sang a song commonly known as 'GEHENA' (ARMAGEDEON) in which he led the song with the following Shona lyrics: 'Ndawona Mugabe achigeza, tauro muchiuno, sipo huhapwa nendebvu hwapepe'; literally meaning 'I saw Mugabe bathing, towel on waist, soap under armpits and big beard'; and he started fanning his nose as if the goblin he was talking about was smelling.

6. The accused also uttered some statements which may cause hostility or hatred towards the President's Office when he said that only the Movement for Democratic Change must live long casting other Governments as bad, corrupt, full of thieves, arresting innocent people and illegally taking away people's property well knowing that President Mugabe belongs to ZANU-PF which was once the ruling Government when the accused said the following in Shona;

'Pamberi ne MDC. Pasi nechihurumende chembavha, chinosunga vanhu vasinamhosva, chichi vatorera zvinhu zvavo'; literally meaning 'Forward with MDC, down with the bad Government of thieves which arrests innocent people and takes away their property.'

7. Police officers who were on duty at the gathering and independent individuals who attended the gathering saw and heard the accused making the statements which are being taken as undermining or insulting the President of the Republic of Zimbabwe in person and his office.”

At the commencement of the hearing of submissions on the question referred for determination, counsel for the applicant raised a preliminary point to the effect that the charge was verbose, repetitive and lacked the precision and clarity of particulars of the alleged offending conduct to enable the applicant to know the case he was to answer.

The contention was that the vagueness of the charge violated the applicant's right to the protection of the law ensnhrined in section 18(1) of the Constitution. The further contention was that the facts which were alleged to constitute the offending conduct would not, if proved at the trial, constitute the criminal offence with which the applicant was charged.

If the Court finds that the facts on which the charge was based would not, if proved at the trial by available evidence, have constituted an offence, it would not be necessary to go into the question of the constitutional validity of section 33(2)(a) of the Criminal Law Code. Basing a criminal charge on facts which, if proved at the trial, would not constitute an offence would be a violation of an accused's right to the protection of the law.

No one can be subjected to criminal proceedings before a Magistrates' Court without a charge or summons. The public prosecutor is given the power, as a representative of the Prosecutor General, to prefer a charge against a person accused of an offence in the Magistrates' Court on behalf of the State.  As the content of the right to the protection of the law guaranteed to every person under section 18(1) of the Constitution, section 18(3)(b) requires that any person who is charged with a criminal offence must be informed, as soon as reasonably practicable, in a language that he or she understands, and in detail, of the nature of the offence charged.

Section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“CP & E Act”) provides that where a public prosecutor has, by virtue of his or her office, determined to prosecute any person in a Magistrates' Court for any offence within the jurisdiction of that court, he or she shall forthwith lodge with the Clerk of Court a statement, in writing, of the charge against that person setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed….,.

The object of a charge is to inform the accused person, in sufficient detail and clear language, of the offence with which he or she is charged to enable him or her to consider the accusation. The charge must state the essential elements of the offence with sufficient precision and provide sufficient particulars of the acts or omissions alleged to have been committed which constitute the criminal offence. The accused person must not be left to guess or speculate as to the true nature of the offence he or she is charged with and the case he or she has to answer.

In S v Hugo 1976 (4) SA 536 (A)…, E MILLER JA said:

“The clear intention is and indeed it is only fair that sufficient particulars should be furnished in order to enable an accused to prepare his defence.”

As the public prosecutor is dominus litis and has the right to determine the charge which he or she wants to prefer against an accused person, it is his or her duty to ensure that the accused is charged with the correct offence. It is also the public prosecutor's duty to ensure that only necessary particulars relating to acts or omissions alleged to have been committed by the accused person which constitute the offence are included in the charge.

Where the offence relates to specific types of statements made with an intention to bring about a prohibited consequence only particulars of such statements need to be included in the charge.

The charge preferred against the applicant included statements he is alleged to have uttered to the audience at the political gathering the contents of which were not about or concerning the President. The contents of the statements could not be said to be false nor could they be said to have the consequences prohibited by the statute. For example, the political slogan exalting the MDC-T party and the statement on corruption in Government had nothing to do with the essential elements of the offence.

The charge was made up of three parts. The first part was a recitation of the essential elements of the offence. The second part was irrelevant. Whilst it opened with words that suggested that it referred to false statements the applicant was charged with making, it revealed a misconception of the essential elements of the offence charged.

It was alleged, in part two of the charge, that the statements made in the Shona language were false. 

There was no allegation that the applicant knew that the statements were false. There was, instead, an allegation that the applicant had an intention 'that the statements may engender feelings of hostility towards or cause hatred, contempt or ridicule of the President.' It would have been difficult for the applicant to understand the nature of the offence he was alleged to have committed when the charge was based on different statements made in his speech which were open to contradictory meanings. There was the statement that the President was a goblin. That was put together with a political slogan exalting the MDC-T and a statement that there was corruption in Government. All these statements were said to be about or concerning the President. They were all said to be false and made with the intention of engendering feelings of hostility towards the President. All the statements could not constitute particulars of the essential elements of the offence the accused was charged with.

The manner the charges were levelled against the applicant violated his right to the protection of the law. 

The State did not comply with the requirements of section 18(3)(b) of the Constitution. It also failed to comply with the requirements of section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] designed to protect a person charged with a criminal offence.

There are remedies provided for by the law for the protection of a person charged with an offence from the consequences of defects in the charge related to lack of clarity in the particulars of the offence he or she is alleged to have committed. 

Section 178(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives an accused person the right to apply to the court, before pleading, to quash the charge on the ground that it is calculated to prejudice or embarrass him in his or her defence.

Section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the accused person who considers that a charge is framed in vague language or that the particulars of the offence are not disclosed in a manner that enables him or her to answer the charge to except to it on the ground that it does not disclose any offence cognizable by the court. The magistrate is obliged to hear the exception and determine whether it is well founded. If the exception is well-founded the magistrate has the power to dismiss the charge.

The procedure provided for under section 178(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] is based on the presumption of the fact that there are facts of the conduct of the accused on the basis of which a reasonable suspicion exists of him or her having committed the offence charged. The defect in the charge would lie in the failure by the public prosecutor to state the particulars of that conduct in clear and sufficient detail so as to inform the accused of the nature of the offence to enable him or her to answer it. If it is a defect that can be rectified without prejudice to the accused's ability to defend himself or herself his or her right to the protection of the law is enforced by an order that the defect be removed or rectified. The procedure provides appropriate remedy for the redress of the type of wrong arising from the drafting of the charge.

The type of wrong suffered by the applicant could not be addressed by the application of that remedy.

Initially, the complaint was that section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] violated the applicant's fundamental right to freedom of expression enshrined in section 20(1) of the Constitution.

At the commencement of the hearing, the court directed counsel to file supplementary heads of argument to address the question whether the facts on which the charge was based would, if proved at the trial, constitute an offence. There is public interest in the strict enforcement of the rule in the field of criminal law to the effect that no person should be charged with an offence on the basis of facts which, if proved at the trial, would not constitute an offence. Section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives an accused person the right to invoke the protection of this fundamental principle of the right to the protection of the law. Effective judicial protection of a person charged with a criminal offence requires strict enforcement of the rule in question.

In Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), the applicants had been charged with contravening section 37(1)(a)(i) of the Criminal Law Code. They raised before a magistrate who was about to commence the trial of the charge preferred against them the question of the unconstitutionality of section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They also raised the question of the violation of their fundamental right to the protection of the law enshrined in section 18(1) of the Constitution. They requested the magistrate to refer the question of the constitutional validity of section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to the Supreme Court for determination on the ground that their prosecution and remand based on the alleged contravention of that law were a violation of their right to the protection of the law.

The magistrate, in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), refused the request for a referral of the constitutional question to the Supreme Court for determination on the ground that the raising of the question, and, ipso facto, the request for referral, was frivolous and vexatious. On an application in terms of section 24(1) of the Constitution, the Supreme Court did not go into the question of the Constitutional validity of section 37(1)(a)(i) of the Criminal Law Code. It took the view that the facts on which the charge was based would not, if proved at the trial, constitute the offence charged or any other offence.

The Supreme Court proceeded, in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), on the basis of the assumption that section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was valid. At p 571C, the Court set out the applicable principle saying:

“To determine the question whether the conduct committed by the applicants and for which they were charged with the crime of contravening section 37(1)(a)(i) of the Act would, if proved at the trial, constitute the offence they were charged with, the magistrate was required, under s 13(2)(e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the applicants and decide whether it constituted the proscribed conduct.

The thrust of Mr Mpofu's argument was that the effect of the protection the Constitution provides for the fundamental right to personal liberty would be evaded if a court did not examine the facts on which a charge laid on an accused person is based and evaluate them according to the objective standards prescribed by section 13(2)(e) of the Constitution.”

The court held, at 570G-H….,:

“A reasonable suspicion that an accused person has committed the offence with which he or she is charged presupposes that the facts on which the charge is based would, if proved at the trial, constitute the offence. Where the accused person challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial, the facts on which the charge is based would constitute the offence with which the accused person is charged.”

Applying the test enunciated in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) to the facts of this case, it is apparent that the applicant did not commit an offence. 

One of the essential elements of the offence of contravening section 33(2)(a) of the Criminal Law Code is that the statement about or concerning the President must be false. The outline of the State case made no reference to the falsity of the statements the applicant was accused of having uttered. All the statements contained in the outline of the State case allegedly made by the applicant could not be false.

The prohibited statement must be about or concern the President or his office. The slogan exalting the MDC-T political party and the statement on corruption in Government could not have been about or concerning the President. They could not be described as false statements either. The sarcasm in the conveyance of the message may have offended some of the listeners. It did not, however, make the message itself false. It was necessary for the State to indicate the false statements uttered by the applicant because it was required to state facts that would prove that the applicant had knowledge of the falsity of the statements.

The statement that the President was a goblin was obviously a false statement.

The offence is however not committed because a person has uttered, at a public place, a false statement about or concerning the President. The statement must be accompanied, at the time of its utterance, by the knowledge of its falsity and an intention to use it to engender feelings of hostility in the audience against the President. That is not even enough for the offence to be committed. The State must prove, beyond reasonable doubt, that the false statement about or concerning the President was capable of deceiving the hearer into believing it is true and that it was likely to arouse in the audience feelings of hostility towards the President or his office.

A patently false statement to the effect that the President is a goblin was unlikely to deceive any right thinking person into believing that it is true. It was unlikely to engender in the hearer feelings of hostility towards the President. In other words, a statement that is patently false that no right thinking person can believe it to be true cannot carry the intent to inflame in the audience feelings of hostility towards the President.

The statement the applicant is alleged to have uttered did not even allege that the President had done anything that could have adversely affected the interests of people generally or those in the audience for it to arouse feelings of hostility towards the President. Such a statement cannot hold up the President to ridicule.

The public prosecutor did not understand the essential elements of the offence.

The outline of the State case suggests that he or she thought that the statute criminalised the causing of some danger to the President. The outline of the facts alleged that the statement that the President was a goblin would “engender the President in person.” That is, of course, meaningless. The outline of the case for the prosecution goes on to allege that the false statement was “taken as undermining or insulting the President.” What is undermined under section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is the authority of the President. The applicant was not charged with the offence of insulting the President. Proof of that offence, which is under section 33(2)(c) of the Criminal Law Code would, not require proof that an accused person made a false statement about or concerning the President as an essential element of the offence.

The finding by the Court is that if the facts alleged in the outline of the case for the prosecution were proved at the trial of the applicant they would not have constituted an offence.

It is declared that the prosecution of the applicant, on allegations of having contravened section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] amounted to a deprivation of his personal liberty, save as would have been authorised by law, in contravention of section 13(1) of the Constitution and was a denial of the fundamental right of the applicant to the protection of the law guaranteed under section 18(1) of the Constitution. 

There shall be no order as to costs.

The facts of this matter are as follows.

The applicant was arrested by members of the second respondent on 26 November 2011 on allegations of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). He appeared in the Harare Magistrates Court on 29 November 2011 facing three counts of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act  [Chapter 9:23], and two counts of theft, as defined in section 113 of the Act. He was placed on remand and bail was denied.

His trial was finally set down for 28 May 2013 before a Regional Magistrate.

The State then dropped the fraud and theft charges and substituted in their place a charge of contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 13(2) of the Exchange Control Regulations, 1996 ('the Regulations'), that is, externalisation of property rights or patents without the authority of the Reserve Bank of Zimbabwe ('the Reserve Bank'). The applicant was notified of the new charge well before the trial date.

On 27 May 2013, a day before the trial was due to commence, the applicant filed an application excepting to the charge. In this application, the applicant challenged the lawfulness of his arrest by members of the second respondent. He submitted that members of the second respondent did not have arresting powers. He also argued that his right to a fair hearing was infringed by the State, in that he was previously charged with fraud and theft at his initial appearance, charges which were totally different from the one he was now facing at the trial but emanating from the same transaction.

The application excepting to the charge was found to be without merit and dismissed by the magistrate on 28 June 2013. The trial then commenced.

On 24 July 2013, the applicant made yet another application to have his matter referred to the Constitutional Court in terms of section 175(4) of the Constitution of Zimbabwe (hereinafter referred to as 'the Constitution'). In the application for referral, the applicant contended that the dismissal of the exception violated his constitutional rights in the following respects –

a) The right to be informed promptly of the charge in sufficient detail to enable him to answer it, in contravention of section 70(1)(b) of the Constitution;

b) The right not to be convicted of an act or omission that was not an offence when it took place, protected under section 70(1)(k) of the Constitution;

c) The right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution;

d) The right to a fair and public hearing within a reasonable time before an independent and impartial court, protected under section 69(1) of the Constitution; and

e) The right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others, as enshrined in section 71(2) of the Constitution.

The application for referral was also dismissed.

The magistrate dismissed the application on the grounds that it was a ploy to delay the trial. It would appear the court a quo did not apply its mind to the issue of whether or not the application was frivolous and vexatious.

This, clearly, was a misdirection.

The applicant now approaches this Court in terms of section 85(1) of the Constitution. In my view, two issues fall for determination by this court, namely;

(1) Whether or not the application is properly before this Court;

(2) If the application is properly before this Court, whether or not the applicant has established that his rights, guaranteed by sections 70(1)(b), 70(1)(k), 56(1), 69(1)and 71(2) of the Constitution, have been violated by the dismissal of his application for exception to the charge….,.

I now turn to the second issue of whether or not the applicant has established that his rights, guaranteed under sectionss 70(1)(b), 70(1)(k), 56(1), 69(1)and 71(2) of the Constitution, were violated.

Counsel for the first respondent argued that the applicant did not come anywhere near establishing any one of the grounds setting out the basis of the alleged violation of his constitutional rights. She submitted that the first respondent had since dropped the fraud and theft charges which the applicant was arrested for and initially brought to court on. The applicant is only facing the charge of contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 13(2) of the Exchange Control Regulations, 1996, that is, externalisation of property rights or patents without the permission of the Reserve Bank.

It is common cause that in April 2013 the applicant was advised of his trial date, being 28 May 2013. On 22 April 2013, State papers were served on the applicant, informing him of the charge he was now facing under the Exchange Control Act [Chapter 22:05] and Exchange Control Regulations, 1996.

A day before the trial date, the applicant filed an application for exception, excepting to the charge on the basis that his arrest was unlawful and that the outline of the State case did not disclose an offence. The application was determined and dismissed by the fourth respondent.

It is the dismissal of that application which the applicant avers contravenes his rights under sections 70(1)(b), 70(1)(k) and 70(2) of the Constitution.

The right protected under section 70(1)(b) of the Constitution is twofold, namely –

(a) The right to be informed, promptly, of the charge; and

(b) The right to be informed of the charge in sufficient detail to enable a person to answer it.

The facts of this matter show that the applicant was timeously informed of the charge he was facing, was given sufficient details of the charge and given ample time to prepare his defence. The applicant was given all the State papers that he needed to prepare for his trial. In fact, he was given all the information that the first respondent had in its possession and intended to use against him at the trial. The applicant was never denied access to any document or information that he intended to use in defending himself.

I am accordingly satisfied that he was given sufficient notice of the charge he was facing to enable him to answer the charge. The charge which the applicant was facing emanated from the same set of facts as that of the fraud and theft charges that were dropped. There was no prejudice suffered by the applicant in the changing of the charge and notifying him of the same. The applicant was given more than a month to prepare for his trial, which is sufficient time for one to prepare for trial.

The applicant also failed to prove in what manner his right to be informed promptly of the charge in sufficient detail was infringed, so as to justify a permanent stay of the proceedings against him.

The applicant's right to a speedy trial was not in any way violated by the dismissal of the application for exception to the charge. Neither was his right enshrined under 71(2) infringed.

This ground of the application cannot succeed.

The applicant also alleged that his right, enshrined in section 70(1)(k) of the Constitution, had been infringed. In his application, it was never explained how this right had been infringed. The heads of argument filed by counsel for the applicant failed to substantiate this allegation.

Section 70(1)(k) of the Constitution ensures that the State does not apply penal statutes with retroactive or retrospective effect. In terms of this section, conduct in the form of an act or omission that at the time it took place did not constitute an offence cannot thereafter become an offence for which a person can be prosecuted and punished.

The acts or omissions complained of in the State Outline in this matter reveal that the offence disclosed in section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 13(2) of the Exchange Control Regulations, 1996, that is, externalisation of property rights or patents without the authority of the Reserve Bank, was in existence at the time the alleged offence was committed. The statutory provisions which the applicant is alleged to have contravened did not come into existence after the alleged conduct of the applicant.

Again, this ground of the application for the permanent stay of criminal proceedings cannot succeed.

Counsel for the first respondent argued that the matter should be referred back to the Regional Magistrates Court for a continuation of the trial. She, however, conceded that the proceedings should be set aside and the trial commenced de novo before a different Regional Magistrate.

In my view, this concession is properly made for the following two reasons –

(i) First, the attitude of the fourth respondent in this application reveals that the applicant may be justified in fearing that he may not get a fair trial before the same magistrate.

This arises from the stance adopted by the trial magistrate to this application.

A trial magistrate should not oppose an application such as this one. He or she should simply place before the court facts he or she believes will assist the court in arriving at a correct decision and undertake to abide by the decision of the court. Opposing an application such as this one is likely to lead to the perception by an accused person that he or she will not get a fair hearing from a court that opposed his application.

(ii) Secondly, the trial magistrate has concluded, in his ruling in respect of the application by the applicant's co-accused and in a similar application by the applicant, that there was a need to hear evidence on whether or not externalisation of copyrights and/or patents without the authority of the Reserve Bank constitutes a contravention of section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 13(2) of the Exchange Control Regulations, 1996.

I have serious reservations regarding the correctness of this conclusion.

The law is the law. There is no need to hear evidence to establish the law. In any trial, evidence is required to establish facts and not the law. A trial court can hear submissions from counsel on what the law is, but it cannot seek to hear evidence to determine what the law is except in instances where the court seeks to establish foreign law, in which case evidence on foreign law from experts is admissible.

In my view, after hearing submissions by the parties, the learned magistrate should have determined whether the facts alleged by the State constituted an offence or not. Failure to make that determination could possibly lead to a violation of the constitutional right of the applicant to protection of the law.

In the case of Williams and Anor v Msipha N.O. and Ors SC22-10, this Court held that putting an accused on trial on facts, which even if proved, do not constitute an offence is a violation of the right to protection of the law guaranteed by the Constitution.

The applicant also seeks an order declaring certain conduct of the State unconstitutional….,.

The applicant, however, urged the Court to grant the applicant the relief sought in paragraphs 2 and 3 of the draft order, which read:

“Whereupon after reading the documents filed of record and hearing counsel for the parties, it is declared that –

2. That (sic) the practice by which accused persons who freely attend at court from their homes are arrested at court for purposes of appearing in court from custody is illegal and unconstitutional;

3. Consequently, that the applicant's arrest and detention on 3 December 2013 was illegal and unconstitutional.”

Counsel for the applicant contended that there was need for the Court to make a ruling on these issues to control or put an end to the practice of arresting accused persons at court and lodging them in the cells pending their appearance in court. This practice, it is common cause, is common at the Magistrates' Courts.

The applicant averred that on the fateful day he attended at court from his home, having been advised by the police officer in charge of the matter that it would be heard on that day. He attended freely and voluntarily, but was surprised, upon arrival at court, to be told by the police officer, a Mr Mutonhodzi, that he was to be taken into the holding cells and would appear in court as a person in custody.

He entered the holding cells at Rotten Row Magistrates' Court under protest. He was taken over by the prison officer and appeared in court from the said cells. In the cells, he mixed with accused persons of all types from the remand prison and other police stations. The court released him on free bail and remanded him out of custody. The court remanded him on free bail at about 0900 hours. Despite his being remanded on free bail, he was again led down to the holding cells and held there for the rest of the day until he was released at about 1600 hours.

The applicant's case is that he should never have been deprived of his liberty for the seven hours in the circumstances of this case. Put differently, he lost his liberty for seven hours as a result of the actions by the police or the State. The actions of the police were arbitrary and without legal basis.

The issue that falls for determination is whether or not the deprivation of the applicant's liberty in the circumstances of this case constitutes an unlawful arrest and/or detention, which violated his right to liberty as guaranteed by section 49(1)(b) of the Constitution. It is alleged that the deprivation of liberty experienced by the applicant is routinely meted out to accused persons in similar circumstances at the Magistrates Courts throughout the country.

The Law

The law relating to the right to liberty has been commented on in a number of cases. In the case of Allan v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (H) REYNOLDS J had this to say:

“Since time immemorial, the liberty of the individual has been regarded as one of the fundamental rights of man in a free society. Long before the Magna Carta codified the principle, almost eight hundred years ago, man has pursued and jealously guarded his right to freedom of person. In the words of Thomas Jefferson: 'The God who gave us life gave us liberty at the same time.' Revolutions have been staged and wars have been fought in the name of freedom. This includes Zimbabwe's own long and bitter struggle. The protection of this right is enshrined in the Constitution of Zimbabwe, and the courts will certainly play their part in preserving this right against all infringements, and all attempts to erode or violate the principle involved.”

The arrest of an accused person that involves placing the accused in custody invariably involves the deprivation of that person's right to liberty. For that deprivation of liberty to be constitutional, it must be lawful. If the arrest is unlawful, then it must also be unconstitutional.

It is common cause that the applicant was arrested at court.

Section 49(1)(b) of the Constitution protects the right to liberty against arbitrary or unlawful arrest. For an arrest to be lawful, it has to be predicated on a just cause. In Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S) it was stated that the legality of an arrest has to be predicated on the proper exercise of the discretion to arrest. Section 25 of the Criminal Procedure and Evidence Act [Chapter 9:07] authorises arrest, but such an arrest has to be based on a proper exercise of the discretion to arrest.

The factors to be considered in deciding whether the discretion to arrest was properly exercised are set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S)…, as follows:

“In making the determination of whether the decision to arrest the plaintiff is open to challenge, several important factors require to be considered. They are –

(i) The possibility of escape;

(ii) The prevention of further crime; and

(iii) The obstruction of police enquiries.”

It is common cause that the applicant attended at the police station prior to the court date and during the period that investigations were conducted. He was sent home and not placed in custody. He was advised of the court date and he freely attended at court - where his liberty was curtailed by placement into the holding cells.

The question of whether he could escape obviously does not arise once it is accepted that the applicant freely attended court on the day in question. The prevention of the commission of further crimes or the obstruction of police enquiries cannot have influenced the arresting police officers on the facts of this case.

These are factors that must have already been weighed by the police during investigations and did not lead to placement into custody. It is quite clear that in this case none of the factors set as necessary for a lawful arrest set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S) existed before the applicant was arrested and placed into custody at the court.

Counsel for the second and third respondents did not make any meaningful submissions pertaining to the impugned practice. The second respondent did not appear before the Court but submitted heads of argument. He argued that there was no infringement of the applicant's personal liberty which entitles him to the relief that he is seeking.

It appears the second respondent does not dispute what transpired on the day in question, as alleged by the applicant. Basically his argument is that this procedure is lawful because it is the standard procedure.

It is trite law that the police can only deprive a person of liberty in accordance with the law. A detention is a deprivation of a person's liberty, which is only permissible in terms of the law. It is common cause that the applicant was detained. Once that is established, it is for the respondents to establish the legal basis for the detention.

In this case, the applicant was not verbally arrested. He was simply told that he was going to be in police custody up until being granted bail by the court - and even after being granted 'free bail' he remained in custody up until the end of the day. No legal basis was advanced by the State justifying the detention of the applicant in the circumstances of this case.

It follows, therefore, that the detention was unlawful and a violation of the applicant's constitutional right to liberty.

It is also not disputed that what happened to the applicant is common practice at criminal courts.

The Court is satisfied that this practice is unconstitutional, in that it interferes with an accused person's right to liberty without any regard to the legal requirements set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S). I must, however, add the caveat that each case has to be determined on its own facts.

It is only in those cases where the facts are on all fours with this case that this provides a precedent.

It is for these reasons that the Court, after reading documents filed of record and hearing counsel, issued the following order:

“IT IS DECLARED THAT (sic)

1. That the facts alleged by the State in this case, even if proved, do not constitute a criminal offence.

Consequently, the first respondent's refusal to refer this matter to the Constitutional Court violated the applicant's right guaranteed by section 56(1) of the Constitution of Zimbabwe, as read with section 175(4) of the Constitution.

2. That the applicant's arrest and detention, on 3 December 2013, at court, for the purpose of his appearing in court from custody when he had freely attended at court was unlawful and unconstitutional in terms of section 49(1)(b) of the Constitution of Zimbabwe….,.”

The facts on which the decision whether or not the applicant's arrest was lawful are disputed.

They are not fully disclosed in the founding affidavit. In any case, they would relate to proof of a matter, the determination of which involves the interpretation and application of statutory provisions by a Remand Court.

The applicant states that on 2 November 2016 he was informed that the Acting Prosecutor-General had written to the third respondent, directing that he be arrested.

The fourth respondent denies writing a letter to that effect. He admits that he wrote a letter directing the third respondent to follow due process.

There is a letter filed of record, the contents of which are clear. It is the import of the letter that is in dispute as between the applicant and the fourth respondent.

The applicant states that not long after he was informed of the existence of the letter, Silas Pondo, a Senior Assistant Commissioner of Police and Acting Secretary of the Zimbabwe Anti-Corruption Commission, visited him. Mr Pondo invited him to the offices of the Zimbabwe Anti-Corruption Commission for an interview. The applicant went to the offices of the Zimbabwe Anti-Corruption Commission at Mount Pleasant Business Park at 1500 hours on 2 November 2016 in the company of his lawyer, Mr Hussein, and his ministerial security aides.

The applicant avers that after a fifteen minute wait he and those who had come with him were led into a Boardroom. In the Boardroom, there were Mrs Farai O. Mashonganyika-Chinyani, a Commissioner of the Zimbabwe Anti Corruption Commission; Mr Pondo; Mr Lovemore Finde, an investigator; Mr Alex Masiye, the Chief Investigations Officer; Sergeant Chacha; and a Legal Officer to the Zimbabwe Anti Corruption Commission.

The applicant alleges that at the commencement of the meeting Mr Finde, supported by Mrs Chinyani, indicated that his security aides had to leave the room. He said he reluctantly acceded to the request. The applicant alleges that Mr Finde requested that his legal practitioner leave the room as what was about to take place was “just an interview.” Mr Hussein protested the request on the ground that it was the applicant's constitutional right to have a legal practitioner present during the interview. Mrs Chinyani then indicated that Mr Hussein could stay on condition he did not ask questions or interfere with the interview.

The interview, which was video recorded, commenced at 3 pm. The applicant says it proceeded with Mr Finde putting questions to him from a written list. The applicant alleges that Mrs Chinyani and the legal officer to the Zimbabwe Anti-Corruption Commission interjected as he responded to the questions. They told him to answer the questions put to him and avoid giving detailed responses. Mr Hussein objected to the interjections, saying the interviewers were coercing him to give answers they wanted to hear. The applicant averred that the first respondent did not ask him any question in the course of the interview. He says he got the impression that the first respondent was present as a recorder. Mr Pondo, who deposed to the opposing affidavit on behalf of the Zimbabwe Anti-Corruption Commission, said the first respondent was part of the investigating team and not a recorder.

The applicant said that after a “lengthy interview”, which ended at 7.30 pm, Mr Finde informed him that the Zimbabwe Anti Corruption Commission had been investigating the case of alleged corruption at the Zimbabwe Manpower Development Fund (hereinafter referred to as 'ZIMDEF') for four months. He said they had concluded that the applicant had committed the crime of abuse of office. The applicant's Ministry superintends the operations of the Zimbabwe Manpower Development Fund. He said that he was told that the purpose of the interview had been to get his views on the findings of the investigating team. He was then “handed over” to the first respondent. The first respondent read a warned and cautioned statement, charging him with the alleged commission of five offences. The first respondent requested that the applicant give his response to the warned and cautioned statement.

The applicant states that his legal practitioner expressed displeasure at the manner in which the “interview” had been conducted. He states that Mr Hussein asked the first respondent whether he was the investigating officer and if he had formed a reasonable suspicion that the offences had been committed. The applicant states that Mrs Chinyani and the legal officer to the Zimbabwe Anti Corruption Commission told Mr Hussein that the question whether the first respondent had reasonable suspicion of the offences having been committed by the applicant was for a court to decide.

The applicant avers that throughout the interview Mr Hussein had indicated that he had vouchers, written guidelines and other documents which proved the lawfulness of the actions under investigation. He said that the Zimbabwe Anti-Corruption Commission's officers told him he could supply the documents later. At that stage Mr Uriri joined him and Mr Hussein. The three of them prepared the warned and cautioned statement in which he denied the allegations of having committed the five offences. The applicant said that as they were drafting the statement the first respondent told Mr Hussein that he had made a few corrections to the warned and cautioned statement. The offence of obstructing the course of justice was added. It was founded on the allegation that the applicant had frustrated his arrest. The allegation was also based on the statements the applicant had made in the media on the allegations of criminal conduct made against him.

Following the making of the warned and cautioned statement, the first respondent told the applicant that he was under arrest. He said that a discussion ensued between the first respondent and his legal practitioner on the possibility of him being released into the legal practitioner's custody pending appearance at the Magistrate's Court. According to the applicant, an agreement was reached between the first respondent and his legal practitioner that he be released into the latter's custody. The first respondent prepared and read out an 'Indemnity of Release.' The Indemnity of Release stated that the applicant had been formally arrested on allegations of criminal abuse of office, fraud, money laundering, and obstructing the course of justice.

The applicant undertook to attend at the offices of the Zimbabwe Anti-Corruption Commission on 4 November 2016, at 0800 hours, to facilitate his appearance at the Harare Magistrates Court. The Indemnity of Release warned the applicant of arrest and detention if he failed to comply with the undertaking. Mr Pondo denies the allegation that there was a discussion between the first respondent and the applicant's legal practitioner which led to the production of the Indemnity of Release. He said that the Indemnity of Release was prepared at their own instance without any suggestion from the applicant's legal practitioner. The applicant was then released into the custody of his legal practitioner on the conditions set out in the document.

The applicant filed the application on 3 November 2016, alleging breach of fundamental rights by the respondents. The allegations were to the effect that:

1. The Zimbabwe Anti-Corruption Commission does not, in terms of the Constitution or the law, have the power to arrest and detain suspects;

2. The fourth respondent does not, in terms of the Constitution or the law, have the power to order the third respondent to arrest an individual;

3. The first respondent could not, at the same time, act on behalf of the Zimbabwe Anti-Corruption Commission and the third respondent;

4. The purported arrest, charge and detention of the applicant on 2 November 2016 by the Zimbabwe Anti-Corruption Commission's functionary, namely, Sergeant Chacha, was in contravention of the Constitution of Zimbabwe and therefore invalid; and

5. The search warrants of the Zimbabwe Anti-Corruption Commission, referenced WSS-ZACC No. 38/2016 and WSS No.45-2016, are invalid.

The applicant filed an urgent chamber application for an order that the main application be heard on an urgent basis. He also sought an interim order staying the criminal proceedings envisaged against him in the Magistrates Court.

The urgent chamber application was heard, and granted, by CHIDYAUSIKU CJ on 3 November 2016.

The applicant has not stated the interest which he seeks to protect in approaching the Constitutional Court, alleging the infringement of fundamental rights guaranteed under sections 49 and 50 of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”). The facts suggest that he is purporting to do so in his personal interest under section 85(1)(a) of the Constitution. He does not state specifically which of the many rights protected under sections 49 and 50 of the Constitution have been infringed.

The facts suggest that the applicant is attacking his arrest which he alleges was unlawful and therefore an infringement of his right to personal liberty.

It is common cause that the applicant was arrested by the first respondent, who was on secondment to the Zimbabwe Anti-Corruption Commission. The applicant makes the allegation of unlawfulness of his arrest from the following standpoints. He alleges that the warrants of search and seizure, the execution of which produced some of the information relied upon in his arrest, were executed in contravention of section 13(4) of the Anti-Corruption Commission Act [Chapter 9:22] (hereinafter referred to as 'the Act').

The relevant subsection of section 13 of the Anti-Corruption Commission Act [Chapter 9:22] provides as follows:

“(4) An officer who intends to make any search, entry or seizure for the purposes of this section shall -

(a) Notify the Officer Commanding the police district in which the officer intends to make the search, entry or seizure; and

(b) Be accompanied by a police officer assigned to him or her or by the police officer referred to in paragraph (a):

Provided that where an officer has reason for believing that any delay involved in obtaining the accompaniment of a police officer would defeat the object of the search, entry or seizure, he or she may make such search, entry or seizure without such police officer.”

The applicant contends that the subsection makes it a precondition that the Zimbabwe Anti-Corruption Commission's officers had to notify the Officer Commanding the police district in which the premises to be searched were located. They had to ask the Officer Commanding to assign a police officer to them, who had to accompany them in the search, entry or seizure. The applicant contended that, while the Zimbabwe Anti-Corruption Commission could dispense with the accompaniment by a police officer, notification of the Officer Commanding the police district is a peremptory requirement. He further stated that he was reliably informed that the Officer Commanding the district in which the Zimbabwe Manpower Development Fund premises are located was not notified. He argues that this rendered the search and seizure unlawful. He went on to argue that on this basis alone his arrest was unlawful.

Whether the search, entry and seizure carried out by the Zimbabwe Anti-Corruption Commission's officials met the requirements of section 13(4) of the Anti-Corruption Commission Act [Chapter 9:22] is not an issue related to any decision on a constitutional matter. It does not call for the Constitutional Court's attention.

The applicant also challenged the lawfulness of his arrest by impugning the actions of the Acting Prosecutor-General.

His case is founded on the allegation that the letter the fourth respondent wrote to the Commissioner-General of Police directed the latter to have him arrested. He contends that such power does not repose in the office of the fourth respondent as provided for in the Constitution. Section 259(11) of the Constitution gives the Prosecutor-General the power to direct the Commissioner-General of Police to investigate and report to him or her on anything which, in the Prosecutor-General's opinion, relates to an offence or suspected offence. The contention is that section 259(11) of the Constitution does not authorise the fourth respondent to direct the third respondent to have a suspect arrested.

In addition, the applicant argues that the Zimbabwe Anti-Corruption Commission has no power to arrest any individual.

He contends that the arresting officer, being on secondment to the Zimbabwe Anti-Corruption Commission, was subject to the same limitations as his principal. The applicant argues that the Zimbabwe Anti-Corruption Commission can only make a recommendation of an arrest of a person to the Commissioner-General of Police in terms of section 255(3) of the Constitution. He said that no recommendation was made to the Commissioner-General of Police for his arrest. He contended that section 1 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22] gives effect to the limited powers of the Zimbabwe Anti-Corruption Commission in respect of the arrest of persons suspected of criminal conduct by providing that one of the powers of the Zimbabwe Anti-Corruption Commission is to make recommendations to the police to arrest and detain any persons reasonably suspected of committing any of the offences falling within its jurisdiction.

The applicant said that, in the absence of a recommendation to the Commissioner-General of Police that he be arrested, his arrest was unlawful.

It must be stated, however, that no law requires the Zimbabwe Anti-Corruption Commission to recommend to the Commissioner-General of Police the arrest of a person reasonably suspected of having committed or of committing any of the offences falling within its jurisdiction. Section 255(3) of the Constitution only provides that the Government must ensure, through legislative and other means that the Zimbabwe Anti-Corruption Commission has power to recommend the arrest and secure the prosecution of persons reasonably suspected of corruption, abuse of power and other improper conduct which falls within its jurisdiction.

Giving effect to the peremptory directive contained in section 255(3) of the Constitution, the Government provided, in section 1 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22], that the Zimbabwe Anti-Corruption Commission has power to recommend to the police the arrest of a person reasonably suspected of committing any of the offences falling within its jurisdiction. The words “recommend to the police” cannot be narrowly interpreted to mean “recommend to the Commissioner-General of Police.”

Whether what the Zimbabwe Anti-Corruption Commission did was in compliance with the provisions of section 1 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22] is not an issue connected to any decision on a constitutional matter. It is determinable by interpretation and application of the specific provisions of the statute.

The applicant also attacks the legality of his arrest on the ground that the first respondent did not form a reasonable suspicion that he had committed the offences falling within the jurisdiction of the Zimbabwe Anti-Corruption Commission before arresting him.

The applicant argues that the first respondent did not conduct the interview, nor did he prepare the questions put to him. He argues that the first respondent did not examine the documents his lawyer referred to during the interview. The applicant argues that the first respondent arrested him on instructions from the Zimbabwe Anti-Corruption Commission and not on his own reasonable suspicion. It was further argued that the first respondent had not acted on the instruction of the third respondent. The applicant contended that, in the absence of reasonable suspicion on the part of the first respondent, his arrest was unlawful.

The application is opposed by the second and fourth respondents….,.

Mr Pondo stated that the first respondent is a duly attested member of the Zimbabwe Republic Police seconded to the Zimbabwe Anti-Corruption Commission in terms of section 3 of the Police (Transfer and Secondment) Regulations, Statutory Instrument 819A/1980 (hereinafter referred to as “the Regulations”).

The first respondent was a member of the team that was tasked with the investigation of the applicant for alleged involvement in the commission of offences of fraud, corruption and abuse of office at the Zimbabwe Manpower Development Fund. He and the first respondent were present throughout the interview of the applicant which took place in the Boardroom at the Zimbabwe Anti-Corruption Commission's premises. The purpose of the interview was to get the applicant's side of the story on the allegations that he was involved in the commission of the offences. The meeting with the applicant was also intended to afford him the opportunity to comment on some of the evidence the Zimbabwe Anti-Corruption Commission had gathered during the investigation of the alleged commission of the offences. Mr Pondo said that the interview was conducted in the presence of the applicant's legal practitioner. The first respondent and he heard all the questions that were put to the applicant and the answers he gave. He said they were able to form a reasonable suspicion that the applicant had committed the offences set out in the warned and cautioned statement.

The fourth respondent also opposed the application.

He said that the functions of the Zimbabwe Anti-Corruption Commission, under section 255(1) of the Constitution, are not mutually exclusive but complementary. He contended that the arresting of a person reasonably suspected of a crime is not a function. He argued that it is only a power exercised in the process of carrying out a function. The relevant function the Zimbabwe Anti-Corruption Commission would be discharging, as required by section 255(1)(b) of the Constitution, by having a person reasonably suspected of corruption, abuse of power, and other improper conduct falling within its jurisdiction arrested, is the combating of the offences in question. Having a person reasonably suspected of the offences falling within its jurisdiction arrested is a power, the exercise of which depends on the existence of the grounds for a lawful arrest. He went further to state that the function of assistance from members of the Police Service denotes general as well as specific assistance. Such assistance, he argued, would include the arresting of persons reasonably suspected of the offences falling within the jurisdiction of the Zimbabwe Anti-Corruption Commission.

The fourth respondent said that arresting persons reasonably suspected of crimes is any police officer's function. He also argued that section 255(3) of the Constitution enjoins the Government to empower the Zimbabwe Anti-Corruption Commission to recommend the arrest and prosecution of persons reasonably suspected of corruption. This, he contends, does not preclude police officers attached to the Zimbabwe Anti-Corruption Commission from effecting arrests, moreso in matters which they would have investigated and formulated a reasonable suspicion upon.

The fourth respondent views the application as premature and devoid of merit, as the issues raised could have been heard, debated and crystallised in a lower court. 

He prayed for the dismissal of the application.

For an issue to fall within the jurisdiction of the Constitutional Court, it must be a constitutional matter or connected with a decision on a constitutional matter.

No constitutional matter has arisen in this case.

The Constitutional Court is set up in terms of section 166 of the Constitution and its jurisdiction is provided for under section 167 of the Constitution, which provides:

“167 Jurisdiction of Constitutional Court

The Constitutional Court -

1. Is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

2. Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule; and

3. Makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.”…,.

The critical issue is whether the applicant's arrest was lawful.

To answer this question, it must be established what it is that constitutes a lawful arrest. An arrest is a juristic act exercised by an authorised functionary. The starting point is that in terms of section 49(1)(b) of the Constitution every person has the right to personal liberty, including the right not to be deprived of liberty arbitrarily or without just cause.

Since time immemorial, the liberty of the individual has been regarded as one of the fundamental rights of man in a free society. An arrest which does not meet the requirement of a lawful arrest is an odious interference with personal liberty. The general position is that every deprivation of liberty is prima facie unlawful and must be justified in terms of an objective norm. See Ingram v Minister of Justice 1962 (3) SA 225 (W)…,; S v Purcel-Gilpin 1971 (1) RLR 241 (AD); Ngcobo v Minister of Police 1978 (4) SA 930 (D); Minister of Home Affairs and Anor v Bangajena 2000 (1) ZLR 306 (SC). The requirements of a lawful arrest are elements of the protection of the right to personal liberty that have been defined in specific terms by statutory provisions.

Section 49(1)(b) of the Constitution is in broad terms which do not specify the requirements of what constitutes a lawful deprivation of liberty. In the case of arrest, section 49(1)(b) is given effect to by section 25 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The section provides:

“25 Arrest without warrant by peace officer or other officer

(1) Any peace officer and any other officer empowered by law to execute criminal warrants is hereby authorised, subject to the general or specific directions of a superior officer or person placed in authority over him, to arrest without warrant -

(a) Any person who commits any offence in his presence;

(b) Any person whom he or she has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule or the Ninth Schedule:…,.”

Section 2 of the Criminal Procedure & Evidence Act [Chapter 9:07] defines 'peace officer' to include “any police officer.” The Ninth Schedule of the Criminal Procedure & Evidence Act [Chapter 9:07] contains all the offences listed under the Schedule to the Act relating to section 13 of that Act.

Section 50 of the Constitution, which the applicant alleges was violated by the first and second respondents, also deals with what constitutes a lawful arrest. It also gives an arrested person the right to challenge the lawfulness of the arrest before a court. The best way of reading the section is to start by reading section 50(8), which provides that any arrest that contravenes the requirements of the section is illegal. The relevant subsections of section 50 provide that:

“50 Rights of arrested and detained persons

(1) Any person who is arrested -

(a) Must be informed at the time of arrest of the reason for the arrest;…,.

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.

(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal….,.”

Section 50(1)(a) of the Constitution is given effect to by section 41A(1) of the Criminal Procedure & Evidence Act [Chapter 9:07], which provides:

“41A Arrested person to be informed of his or her rights

(1) Subject to this section, where a person has been arrested by a peace officer, whether with or without a warrant, the peace officer shall cause the person to be informed promptly, in a language he or she understands, of -

(a) The reason for the arrest;…,.”

Section 50(1)(e) of the Constitution is given effect to by the provisions of section 41A(6) (b) and (c) of the Criminal Procedure & Evidence Act [Chapter 9:07], which provide:

“(6) Every person concerned in the arrest of another person under this Act or any other enactment, and whether the arrest is with or without warrant, shall ensure that the arrested person is -

1. Treated humanely and with respect for his or her inherent dignity; and

2. Permitted to challenge the lawfulness of the arrest in person before a court; and

(c) Released promptly if the arrest is unlawful.”

What is beyond doubt is that what constitutes a lawful arrest is set out in statutory provisions that give effect to the broad terms of the provisions of the Constitution guaranteeing the right to personal liberty. Personal liberty is not interfered with by means of an arrest only. The statutory provisions deal with situations of deprivation of personal liberty by means of arrest for offences. The Constitution is not directly applicable in the determination of the question of what constitutes a lawful arrest. What are applicable are the statutory provisions. The Constitution is only applicable, indirectly, through the statutory provisions that give effect to its provisions.

It is apparent from the relevant statutory provisions that a lawful arrest is in large part predicated on the existence of a reasonable suspicion of the commission of an offence. The point is made in Dumbell v Roberts [1944] 1 All ER 326, where SCOTT LJ commented…,:

“The power possessed by constables to arrest without warrant…, provided always that they have reasonable grounds for their suspicion is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall, before arresting, satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt.”

In Williams and Another v Msipha NO and Ors 2010 (2) ZLR 552 (S)…, it is stated:

“Respect for the fundamental right to the protection of the law is a guarantee for judicial protection of the fundamental right to personal liberty. Section 13(2)(e) of the Constitution authorises deprivation of an accused person of personal liberty where there is reasonable suspicion of him having committed a criminal offence. That is the only ground on which a judicial officer faced with a request by a public prosecutor for the remand of an accused person is authorised by law to deprive the accused person of his or her liberty by an order of remand, in or out of custody, for the purpose of ensuring his or her appearance at the trial on the charge.”

The law is therefore that a person arresting another has to have a reasonable suspicion that an offence has been committed or is being committed by the person he or she arrests. There is no dispute over the standard of a lawful arrest and its location in statutory provisions.

The validity of the statutory provisions on what constitutes a lawful arrest is not challenged.

The main challenge to the lawfulness of the arrest of the applicant is based on the contention that the first respondent did not form a reasonable suspicion of him having committed any of the offences set out in the warned and cautioned statement.

Counsel for the applicant pressed the contention in the applicant's heads of argument that even if the first respondent had formulated a suspicion, it was not a reasonable one, as it would have been based on the content of the exchanges between the applicant and Mr Finde during the interview conducted by the latter.

The difficulty is that it is not for the Constitutional Court to decide whether or not the first respondent formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement. Before a court with the power to hear and determine the matter, the first respondent would have to say, in evidence, whether or not he formed the suspicion. It is he who could say on what basis he formed the suspicion. He would have been subject to cross-examination. It is only after finding that the first respondent formed the suspicion required by the law that the court hearing the evidence could decide whether the suspicion formed was proved to be reasonable.

Whether the person who arrested another had a reasonable suspicion of the arrestee having committed an offence is a question of fact. That question relates to the arresting person's state of mind at the time of arrest. It is about the arresting person's interpretation of facts. The interpretation and conclusion reached, subjectively, give rise to the question whether there were grounds the knowledge of which would have caused a reasonable person in the position of the arrester to form the suspicion of the arrestee having committed the offence for which he or she was arrested. 

In R v van Heerden 1958 (3) SA 150 (T) it was said…,:

“The test for determining the existence of a reasonable suspicion is an objective one, that is, the grounds of suspicion must be those which would induce a reasonable person to have the suspicion.”

In Castorina v Chief Constable of Surrey [1996] LG Rev Rep 241…, WOOLF LJ commented that whether or not an arrest was lawful depended upon the answers to three connected questions. Those questions were:

“1. Did the arresting officer suspect that the person who was arrested was guilty of the offence?

The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

2. Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion?

This is a purely objective requirement to be determined by the Judge, if necessary, on the facts found by a jury.

3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has it been exercised in accordance with the principles laid down by LORD GREENE MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

In the same judgment, SIR FREDERICK LAWTON…, said:

"Suspicion, by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which the court would adjudge to be reasonable. The facts may be within the arresting constable's own knowledge or have been reported to him. When there is an issue in a trial as to whether a constable had a reasonable cause, his claim to have had knowledge or to have received reports on which he relied may be challenged. It is within this context that there may be evidential issue as what he believed to be the facts. But it would be for the court to adjudge what were the facts which made him suspect that the person he arrested was guilty of the offence which he was investigating."

In Attorney-General v Blumears and Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty under s 13(2)(e) of the Constitution are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime. It seeks, on the one hand, to safeguard the individual from rash and unreasonable interference with liberty and privacy, and from unfounded charges of crime; yet, on the other, to give fair leeway for enforcing the law in the community's protection. The criterion of reasonable suspicion is a practical, non-technical concept which affords the best compromise for reconciling these often opposing interests. Requiring more would unduly hamper the legitimate enforcement of the law. To allow less would be to leave law-abiding persons at the mercy of the whim or caprice of the authorities.”

In the case of Muzonda v Minister of Home Affairs and Another 1993 (1) ZLR 92 (S)…, GUBBAY CJ held thus:

“It is not sufficient for a peace officer to personally believe that he has reasonable grounds on which to base the arrest. These grounds must, in addition, be justifiable from an objective point of view, that is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds.”

The applicant was arrested and the intention was to bring him before a magistrate for initial remand. It is at these proceedings that the applicant ought to have challenged the lawfulness of his arrest. The question of the lawfulness of the applicant's arrest would have been within the jurisdiction of that court. The Magistrates Court would have had the competence to conduct the factual inquiry into whether or not the first respondent formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement.

It is clear that the question the applicant sought to place before the Constitutional Court for determination is whether what the first respondent did, under the services of the Zimbabwe Anti-Corruption Commission, in arresting him, was in compliance with the requirements of a lawful arrest. The issue involves a finding of facts; and the interpretation and application of the statutory provisions on the requirements of a lawful arrest. The determination of the issues does not need proof of violation of the fundamental right to personal liberty. It requires proof of the facts in dispute. It also requires proof of compliance with the statutory requirements of a lawful arrest. The determination of the issues does not involve the interpretation, protection or enforcement of the Constitution.

None of the issues is a constitutional matter.

The Indemnity of Release bound the applicant, in terms of the law, to report at the offices of the Zimbabwe Anti-Corruption Commission on 4 November 2016 for the purposes of appearing before a magistrate for remand. Had he appeared in accordance with the Indemnity of Release, the applicant would have been in a position to challenge the lawfulness of his arrest before the magistrate. That court would have heard evidence and made findings of fact in the adjudication of the challenge to the lawfulness of his arrest.

In terms of the Constitution, the emphasis is on the right of accused persons to personal liberty.

Among other things, one should not be deprived of one's liberty without just cause (section 49(1)(b)). Once arrested and not released, a person is entitled to be brought to court within forty-eight hours or else he or she must be released immediately, unless a competent court has authorised his or her continued detention (section 50(2)).

It does not matter that the forty-eight hours may lapse on a Saturday, Sunday or a public holiday.

Probably to emphasise the importance of the right to personal liberty, parts of section 50 of the Constitution empower anybody to bring an application for a habeas corpus in respect of someone who, among other things, is being detained illegally, so that they may be released or brought before the court for the lawfulness of their detention to be justified. To cap it all, any person who has been illegally arrested is entitled to compensation from whosoever might have been responsible, except if there is a law that has been passed to protect judicial officers or other public officers acting reasonably and in good faith.

This applicant for bail was arrested on 20 January 2016 by Nyamandlovu police who preferred charges of rape against him. 

He was only taken to court for initial remand on 31 January 2016 - eleven days after his arrest. 

Section 50(9) of the Constitution reads as follows:

“Any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but the law may protect the following persons from liability under this section -

(a) A judicial officer acting in judicial capacity reasonable and in good faith.

(b) Any other public officer acting reasonably and in good faith and without culpable ignorance or negligence.”…,.

Also pointed out in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC) is that all arrests are prima facie illegal and the onus is upon the person who effected it to prove that the arrest was legally justified.

Section 50(1) of the Constitution states as follows:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”…,.

It must be noted that the right to liberty is not an absolute right, therefore, where there are “compelling” circumstances the Courts are at liberty to detain the accused person.

The accused's right to a fair hearing, as enshrined in section 69 of the Constitution, cannot be taken lightly.