Urgent
Chamber
Application
HUNGWE
J: In
this application the applicants seek an order -
(a)
declaring their arrest and continued detention unlawful;
(b)
requiring the respondents and all those calling through them or
acting on their behalf to permit the applicants access to medical
treatment at medical centres of their choice;
(c)
directing the respondents or anyone calling through them or acting on
their behalf to produce the applicants before a High Court Judge in
Chambers within two hours of the order being made or alternatively
take the applicants for a remand at the magistrates court at or
before 12h00 on 11th November 2008 failing which the respondents and
all those calling through them or on their behalf shall forthwith
release all the applicants from custody and that thereafter no
Magistrates Court should entertain the matter for remand purposes
save for trial purposes, applicants having been duly summoned.
They
also seek an order for costs on a higher scale.
The
application was placed before me through the Chamber Book as an
urgent application on 6 November 2008. After perusing the papers I
directed that the applicant serves the application on the respondents
as well as on the office of the Attorney-General.
I
considered that the matter merited speedy consideration and that the
Rules of Court relating to notice be dispensed with in the interests
of the rights of the applicants. The matter was to be set down for
hearing the next day at 10h00.
The
application is
premised
on an affidavit deposed to by applicants' counsel Mr
Andrew Mukoni. He
makes the following averments:
The
applicants are Fidelis Chiramba, Pieta Kaseke, Terry Musona, Fanuel
Tembo, Mrs Mutemagau, Mr Manyemwe, Lloyd Tarumbwa and others. The 3rd
and 4th
respondents are police officers responsible for the arrest and
detention of the applicants. The police officers operate under the
direction and control of the 1st
and 2nd
respondents.
On
3rd
November 2008 Mr
Makoni was
instructed to represent all the applicants. From the information he
gathered the applicants were being dealt with by either CID Homicide
Section or CID Law and Order Section at Harare Central Police Station
although they had been arrested in places around Banket and Chinhoyi.
Upon
visiting CID Law and Order section, the Officer-in-Charge of that
section professed ignorance of the matter. When he then visited
homicide section, he learnt that 3rd
respondent
was handling the matter. Upon requesting audience with him, the
latter was said to be too busy to see the applicants' counsel. He
also gathered information concerning the detention of the applicants
at various police stations around Harare.
A
visit to these stations however indicated that the applicants had
been released into the custody of the 4th
respondent.
He
concluded that the police were detaining the applicants illegally for
the reason that the 48 hour period permitted at law had long expired.
He also believed that the police were holding the applicants in
communicado. He
feared that the applicants were being subjected to torture,
ill-treatment or other inhuman and degrading treatment as access to
legal practitioners was being denied. He believed that police had no
legal basis for detaining the applicants hence they had failed to
take the applicants to court within 48 hours as required of them by
law. He believed that the applicants were being subjected to such
ill-treatment for the purposes of unlawfully extracting from them
confessions without legal representation.
He
therefore prayed that the applicants be produced at court or be
released.
At
the hearing Mr. Ndlovu
for
the respondents, indicated that the police did not have the
applicants in their custody and therefore were unable to release the
applicants. He pointed out that the police deny arresting the
applicants as no evidence of such an arrest had been produced by the
applicants.
In
view of the attitude of the respondents, the matter was postponed to
11 November 2008 to allow the applicants to file further affidavits
to address the following questions:
(a)
where are the applicants detained?
(b)
what are their detention book numbers, if any?
(c)
under what circumstances were they detained?
(d)
on whose authority are they detained?
(e)
what are the applicants full and further particulars?
(f)
what other persons were arrested and detained under similarly
circumstances as the present applicants?
(g)
what is the registration number or numbers of the vehicles which
conveyed the applicants if any? and
(h)
whether any criminal charges were preferred against any of the
detainees.
The
respondents, particularly 3rd
and 4th
respondents, for their part were directed to file affidavits
answering the allegations raised in the founding as well as the
supplementary affidavit.
On
10 November 2008, Mr Makoni filed his supplementary affidavit as
directed by the Court. The respondents did not file any affidavit
despite being directed to do so by the Court.
In
his supplementary affidavit he makes the following averments at
paragraphs 5 and 6.
"5.
After the postponement of the matter, I drove to Mabelreign police
station in the company of the defence team comprising of myself, Alec
Muchadehama and Charles Kwaramba. We gathered the following facts.
Pieta
Kaseke the 7th
applicant was detained at the police station under Detention Book
Number I55/0S on the 2nd
November 2008. She was booked in by Detective Assistant Inspector
Chibaya for Chief Superintendent Makedenge of CID Homicide. She
resides at 167 Munashe Street, Kuwadzana Township, Banket. She was
released by Detective Sergeant Muuya of CID Homicide on behalf of
Chief Superintendent Makedenge. We then visited Avondale police
station and discovered that Pieta Kaseke had been detained at the
station prior to her detention at Mabelreign police station, She was
detained under DB1122/08. She was detained by Detective Assistant
Inspector Phiri for Makedenge on 1st
November 2008 and booked out on 2nd
November 2008. Her whereabouts are still unknown. We believe she is
still in the hands of the police with her minor child.
6.
At Avondale police Station we also gathered that the 1st
applicant was also at some stage detained there. He was detained at
the station on the 3rd
of November 2008 under detention number DB1126/08 and released by
Detective Chief Inspector Paradza and Detective Inspector Chibata for
C/S Makedenge on the 4th
November 2008. His whereabouts are still unknown. We have reason to
believe he is still in police custody.
Prior
to this detention he was detained at Rhodesville police station. His
detention number at Rhodesville was DB1886/08. He was in these cells
on the 31st October 2008 from 09h00 to 15h00 when he was booked out
by D/C Muuya of CID Homicide allegedly for CID Law and Order. 1st
applicant was again detained at Highlands police station and
Borrowdale police station before he was taken to Avondale police
station. We failed to get the detention numbers at these two police
stations as the police were less co-operative. 1st
applicant resides at number 825 Kuwadzana Township, Banket. His ID
number is [number]."
He
recites that he ascertained that 3rd
applicant
was once detained at Rhodesville and gives his particulars. 3rd
applicant was detained under DB1892/08 at Rhodesville and released by
Detective Sergeant Mavunga of CID Homicide on 4th
November 2008.
In
respect of the rest of the applicants, Mr
Makoni says
he was unable to obtain any information regarding where they were
detained after when they were attested or where they currently were
detained. This was in spite of his visiting various police stations
around the city like Avondale, Borrowdale, Braeside, Highlands,
Mabelreign, Matapi, Mb?r?,
Marlborough
and Rhodesville. Despite diligent inquiry he was unable to ascertain
full particulars of certain of the detainees e.g. 5th applicant's. He
was however able to confirm that the applicants were being accused of
contravening section 24 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] i.e. training insurgents, bandits, saboteurs and
terrorists. He averred that after his discussion on 4th
November 2008 with Detective Chief Inspector Paradza, he was under no
illusion that all the detainees were held by the police and that
Chief Superintendent Makedenge was handling the case.
Paradza
referred all questions to Makedenge who refused to entertain counsel.
A
further supplementary affidavit was obtained from 1st
applicant's son one Ponsiano Chiramba. According to him police came
into their neighbourhood on 30th
October 2008 and arrested Larry Gaka, 8th
applicant. No-one had the presence of mind to record the police
vehicle registration number.
This
occurred at night.
The
following day, 31st October 2008 around 03h00, police struck again
and arrested his father together with 2nd
and
3rd
applicants. His father is the losing senatorial candidate for Zvimba
in the March 2008
harmonised
elections. He believes the arrests were politically motivated as all
those arrested are MDC activists. Police took away his father's fully
licensed 303 rifle. His father, the 1st
applicant, is a 71 year old retired police officer.
Ponsiano
brought food for this father at Rhodesville and later Highlands
police stations but when he attempted to do the same at Borrowdale he
was met with resistance. Police refused to disclose his father's
whereabouts saying only that they were under instructions not to
divulge such information.
9th,
10th
and 11th
applicants were arrested whilst driving from MDC Headquarters in
Harare. They are resident in Banket, Their motor vehicle and
themselves have not been seen since their arrest.
Ponsiano
was surprised to hear that the police deny any knowledge of the
whereabouts of the applicants.
Faced
with this evidence Mr
Ndlovu, for
the respondents, reconsidered his position and advised the court at
the resumed hearing on 11th
November 2000 that he was no longer opposed to
the
granting of the final order sought by the applicants were seeking.
The
change in his altitude is not only legally correct but commendable. I
say this for the following reasons.
The
Republic of Zimbabwe is a signatory to the International Covenant on
Civil and Political Rights, 1966
(ICCPR).
It acceded to this international treaty. As a State Party to this
international human rights treaty, the Republic of Zimbabwe is bound
by the international treaty obligations flowing from the treaty. It
may well be necessary to recite the relevant provisions of the ICCPR
here.
Article
9 of
the International Covenant on Civil and Political Rights, 1966,
provides
thus:
“1.
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.
2.
Anyone who is arrested shall be informed, at the time of arrest, of
the reasons for his arrest and shall be promptly informed of any
charges against him.
3.
Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may
be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution
of the judgement.
4.
Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that court may
decide without delay on the lawfulness of his detention and order his
release if his detention is not lawful.
Generally
speaking the treaty places two types of obligations on States.
(i)
Firstly, the duty to respect and ensure human rights; and
(ii)
secondly, the duty to guarantee that those same rights are respected.
The
first set of obligations is both positive and negative in nature; on
the one hand the State must refrain (whether by act or omission) from
violating human rights: and on the other hand the State must ensure
that, through the adoption of whatever means necessary, such rights
can be actively enjoyed.
In
fulfilment of the positive duty to ensure the protection, enjoyment
and promotion of the rights set out in the ICCPR, the Republic of
Zimbabwe has given prominence to these rights by devoting an
important part of its Constitution to these rights (Chapter III The
Declaration of Rights Sections 11
to
26).
Section
13 of the Constitution of the Republic of Zimbabwe guarantees the
protection of the right to personal liberty.
Section
13(3) thereof provides that any person who is arrested or detained
shall be informed as soon as reasonably practicable, in a language
which he understands, of the reasons of his arrest or detention and
shall be permitted at his own expense to obtain and instruct without
delay a legal representative of his own choice and hold communication
with him.
Subsection
(4) further provides that any person who is arrested or detained upon
reasonable suspicion of his 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 any prejudice to any further proceedings that may
be brought against him, shall be released either unconditionally or
upon reasonable conditions necessary to ensure that he appears at a
later date for trial or proceedings preliminary to trial.
The
meaning of the right, contained in section 13(4) of the Constitution,
was considered by this Court in S
v Makwakwa
The
Court noted that section 32(2) of the Criminal Procedure and Evidence
Act [Chapter
9:07]
says:
"....a
person arrested without warrant shall as soon as possible be brought
to a police station or charge office and, if not released by reason
that no charge is to be brought against him, may be detained for a
period not exceeding forty-eight hours, unless he is brought before a
judge or a magistrate, or a warrant for his further detention is
obtained in terms of section thirty-three."
The
enactment of this provision further demonstrates the State party's
commitment to the upholding and promotion of the above rights. The
judicial interpretation rendered to it is consistent with the spirit
of that treaty.
From
the above it is clear that the police on or about 30th
October 2008 took all the applicants into their custody. They were
required by law to advise the applicants of the reasons for their
arrest. The Police did not do so almost 14 days after they effected
an arrest!
They
were legally obliged to afford the detained persons access to legal
counsel as soon as possible. The police did not do so 14 days after
arresting the applicants.
In
terms of the Constitution of Zimbabwe the police were obliged to
release the applicants if they failed to charge them with a criminal
offence or bring them before a court of law within 48 hours of their
arrest.
Again
the police did not do such a basic thing.
When
they were sued, the police denied any knowledge of the applicants
when clearly they knew or ought to have known that the applicants
were being held in their custody.
When
I asked Mr
Ndlovu at
the hearing why his clients had not indicated some willingness to act
according to the law in view of his advice to them, his response was
that both 3rd
and 4th
respondents
had taken leave of absence from their duties. No-one was prepared to
deal with
the
matter.
Such
conduct by the police ought to be deprecated.
Being
officers of this Court the respondents ought to have known better
than to deny such a notorious fact as the detention of the
applicants. This denial has placed their counsel in a position where
he can hardly oppose the order sought.
The
respondents have denied the applicants the protection of the law.
The
respondents have permitted the applicants to be detained
incommunicado.
People
are at risk of torture or other forms of ill-treatment if they are
detained incommunicado.
The
risk increases the longer they are held as this allows for a longer
period for injuries to be inflicted and visible marks of these
injuries to fade.
Further
detainees have a right of access to legal advice without delay.
They
should be able to consult with a lawyer in private while in custody,
to have a lawyer present during interrogations and to representing
them when they appear in court. Lawyers should be able to advise and
represent their clients in accordance with professional standards
free from intimidation, hindrance, harassment and without improper
interference from any quarter.
This
is trite. No authority is required for stating the obvious.
There
is one more disturbing feature in this saga.
The
respondents have not denied it either orally through Mr
Ndlovu or
by their action. It is the detention of a two year old alongside its
mother.
It
hardly needs me to point out that being a signatory to
the
Convention on the Rights of the Child; the Republic of Zimbabwe must
be seen, through the acts of its public officials, to be protective
of the rights of the child.
One
of the applicants was arrested and taken away together with her two
year old baby. There is no suggestion that the baby was suspected of
having committed, or being about to commit a criminal offence at the
time. There appears to be no provision in our law as it currently
stands as to how the police should deal with such a situation.
Section
135(1) of the Criminal
Procedure and Evidence Act [Chapter
9:07]
says
that when a person under the age of eighteen years of age is accused
of any offence other than treason, murder or rape, any judge,
magistrate or police officer who has power under that part to admit
the said person too bail may, instead of detaining him -
(a)
release him without bail and warm him to appear before a court ?r
magistrate
at a time and on a date fixed by such a person; or
(b)
release him without bail to the care of the person in whose custody
he is and warn that person to bring him or cause him to appear before
a court or magistrate at a time and on a day then fixed; or
(c)
place him in a place of safety as defined in section 2 of the
Children's
Act [Chapter
5:06]
pending
his appearance before a court or magistrate or until he is dealt with
according to law.
Section
58 of the Prisons
Act [Chapter
7:11]
provides
that subject to such conditions as may be specified by the
Commissioner, any unweaned infant child of a female prisoner may be
received into prison together with its mother and may be supplied
with clothing and necessaries at the public expense provided that
when such child has been weaned, the officer in charge, on being
satisfied that there are relatives or friends of the child able and
willing to support it, shall cause such child to be handed over to
such relatives or friends. If he is not so satisfied, shall hand over
such child to the care of such welfare authority as may be approved
by the Commissioner for the purpose.
Section
84(1) of the Children's
Act [Chapter
5:06]
provides
that a child or young person who is charged with an offence shall not
before conviction be detained in a prison or police cell or lock-up
unless his detention is necessary and no suitable remand home is
conveniently available for his detention.
It
is clear that all three statutes address the position of a child
suspected of having committed a criminal offence.
The
Children's
Act
does
not expressly address the plight of a baby taken by police who have
arrested its mother but in my view the prohibition against detention
of minors is implied in this section.
Article
16 of the Convention on the Rights of the Child provides thus:
"Article
16- protection and privacy
1.
No child shall be subjected to arbitrary or
unlawful
interference with his or her
privacy,
family, home or correspondence, nor to
unlawful
attacks on his or her honour and
reputation.
2.
The child has the right to the protection of the law against such
interference or
attacks."
In
any event I hold that the protection afforded to children is over and
above that set out in the Constitution and other statutes.
There
is need however for the appropriate Act to expressly state this
prohibition in clearer terms as it appears a lacuna exists in our law
as presently constituted.
The
conduct of the respondents in this case does not in any way uphold
this international obligation to protect and promote the said rights.
It
is not sufficient to pass legislation which recognizes the protective
rights set out under international covenants and the Constitution as
well as other domestic laws when in practice the public face of the
State acts in flagrant breach of such protection afforded by the law.
There
must be adequate recourse in cases of breaches being proved before
the courts.
To
subject a two year old to the rigours of detention simply on the
grounds that its mother may have committed some criminal offence is
totally unconscionable and immoral.
This
is made worse by the denial of basic rights to the mother in the
present case.
It
cannot be over-emphasised that the police can only act within the
law. No-one is above the law or below it.
In
the present case the 3rd
and 4th
respondents have callously demonstrated the affinity to act as if
they were above the law.
Despite
the fact that I directed that they file affidavits in answer to the
allegations personally against them none were forthcoming. I assume
they have nothing to say for themselves in view of their blatant
breach of the clear provisions of the law. I will therefore make
findings without having their side of the story since they have
declined the opportunity to respond.
The
applicants seek an order declaring their arrest and continued
detention unlawful. They also seek an order requiring the respondents
and all those acting through them or on their behalf to permit
applicants access to medical treatment at medical centres of their
choices. Further, the applicants seek an order directing the
respondent or anyone calling through them or on their behalf to
produce applicants before a High Court Judge in Chambers within two
(2) hours of the order being made or alternatively take the
applicants for a remand hearing at the Magistrates Court at/or before
12h00 on 11th November 2008 failing which the respondents and all
those calling through them or acting on their behalf shall forthwith
release all applicants from custody and that thereafter no
Magistrates Court should entertain the matter for remand purposes
save for trial purposes, applicants having been duly summoned.
Because
at the end of the hearing there was no opposition to the order sought
I am of the view that costs on a higher scale should be reserved for
those cases where there is malicious opposition.
Had
the applicants sought an order for costs personally against the 3rd
and 4th
respondents, I may have favourably considered granting it in view of
the attitude displayed by the two to the present the proceedings.
In
the event I will grant the following final order:
1.
The treatment and continued detention of the applicants beyond the
statutory 96 hour period be and is hereby declared unlawful.
2.
That the respondents and all those calling through them or acting on
their behalf be and are hereby ordered to take applicants for a
remand hearing at the nearest Magistrates Court at/or before 16h00 on
11 November 2008, failing which the applicants are entitled to
their
immediate release.
3.
In the event of the State deciding to charge the applicants for any
offence arising from the allegations presently under investigating,
then the police may proceed by way of summons.
4.
The respondents and all those calling through them or acting on their
behalf shall forthwith allow the applicants access to their legal
practitioners, relatives and to medical treatment at medical
facilities of their choice.
5.
This order shall stand notwithstanding the noting of any appeal.
6.
This order shall be served by the applicants' legal practitioners or
the Deputy Sheriff.
Mbidzo,
Muchadehama & Makoni, applicants legal practitioners
Civil
Division of the Attorney-General's Office, respondents legal
practitioners
1.
1997 (2)
ZLR 298 (H)
