The brief facts of this matter are as follows.

The appellant was a magistrate stationed at Chinhoyi Provincial Magistrates Court, Mashonaland West. He was arraigned in that court on two counts of contravening section 3(1)(a)(ii) of the Prevention of Corruption Act [Chapter 9:16], and, after a contested trial, convicted.

He was represented by counsel of his choice throughout his trial…,.

Although there are three grounds of appeal put forward by the appellant, the heads of argument relied upon by counsel took only one point. It is that the State had not proved all the essential elements of the offence, and, as such, the presumption provided in section 15(2) of the Prevention of Corruption Act [Chapter 9:16] could not be lawfully be invoked in favour of the State.

In a carefully reasoned judgment, the Provincial Magistrate, who presided over the trial in the court a quo, found the following facts to have been established by the evidence adduced before him. At page 8 of the judgment he said -

“In count 1, the court carefully analysed the evidence of all State witnesses and found it highly improbable that these witnesses, who came from different backgrounds, met and fabricated their evidence. Sarah and Agnes saw accused in his office. They spoke to him. They saw him holding a red pen and with it he marked some items on exh 1 which Sarah was supposed to get even before the matter was finalized. With the same red pen, Agnes was given a piece of paper which had two of the accused's phone numbers. The same numbers were used by Agnes and they connected her to the accused and in the presence of Sarah. Sarah and Agnes saw accused use a red pen to mark exh 1. These two heard accused promise that Sarah should be able to get the items marked even before the matter was finalized.”

It should be recalled that the witness Simon Kasukuwere, a prison officer, had deposed to being sent by the appellant to collect money from someone at Greens. He did not know the person who was to give him money on the appellant's behalf, nor the amount to be given, let alone the reason why the appellant was to be given money by this person. He had deferred to the appellant's instruction as he considered his rank subordinate to that of the appellant. Regarding Simon, Agnes and Sarah, the magistrate said:

“They all said the accused received $500,000= from Sarah. Sarah and Agnes fully corroborated each other in all material respects. They visited the accused's office and had a discussion with him. They were told that lunch should be bought if Sarah's case was to be heard on the 29^th of December. Indeed, on that day, the matter was not postponed as feared, but it was heard before the accused and Sarah got the relief she had prayed for.”

The appellant contends that Agnes and Sarah never sought to corrupt the appellant. Reliance is placed on a few lines (3 lines on page 13; 3 lines on page 65 and 10 lines on page 79) for this contention.

What appears at page 13 reflects events leading to the arrest of the appellant - well after the offence had been committed. At page 65, Agnes simply repeats the demands for lunch by the appellant which she did not realize was an offence yet the payment was meant to induce the appellant to show favour in the execution of his official duties. Page 79 deals with amounts which do not form part of count one for which appellant was convicted. He was acquitted on count 2 to which these amounts relate. The evidence on which the appellant was convicted clearly shows, as the learned magistrate demonstrated, that it is the solicitation by the appellant for money for lunch which form the basis for drawing an inference in terms of section 15(2) of the Prevention of Corruption Act [Chapter 9:16], that this request, if acceded to, would result in the appellant showing favour towards the treatment of her case on 29 December. Indeed, ZW$500,000= was paid to the appellant through Simon and on 29 December, by Sarah Rice, who only partially obtained access to some items which were under legal contestation at court in a matter presided over by the appellant.

Counsel for the appellant, in his heads of argument, urged this court to find that the State had not proved all the essential elements of the offence charged. He relied on S v Chogugudza 1996 (1) ZLR 28 (S) where the following appears…, -

“…., before the State could rely on the presumption in s15(2) of the Prevention of Corruption Act, it would have to show:

(a) That the accused was a public officer;

(b) That in the course of his employment or in breach of his duty;

(c) He did something which, objectively considered, showed favour or disfavor to another.”

The interpretation which the appellant gave to section 3(1)(a) of the Prevention of Corruption Act [Chapter 9:16] is not supportable on the facts. Counsel correctly points out that the above passage was stated in the context of section 4 of the Prevention of Corruption Act [Chapter 9:16]. It must be accepted that there is a clear distinction between the two sections. Whilst section 3(1) of the Prevention of Corruption Act [Chapter 9:16] sets out what constitutes corrupt practices, section 4 of the Prevention of Corruption Act [Chapter 9:16] is concerned with offences by public officials. As such there is no need to import some interpretation when the literal interpretation gives effect to the clear intention of the legislature.

In the absence of ambiguity, it must be taken to mean what it says and say what it means. There is simply no basis for reading anything into the words employed or for putting a particular gloss on a meaning so plain and patent….,.

Section 3(1)(a)(ii) of the Prevention of Corruption Act [Chapter 9:16] provides:

“3. Corrupt Practices

(1) If -

(a) Any agent corruptly solicits or accepts or obtains, or agrees to accept or attempts to obtain, from any person a gift or consideration for himself or any other person, as an inducement or reward -

(i) For doing or not doing, or for having done or not done, any act in relation to his principal's affairs or business; or

(ii) For showing or not showing, or for having shown or not shown, favour or disfavor to any person or thing in relation to his principal's affairs or business:

(b) …,.

(f) …,.

he shall be guilty of an offence.”

Section 15(2)(a) of the Prevention of Corruption Act [Chapter 9:16] then says;

“If it is proved in any prosecution for an offence in terms of section three or four that:-

(a) Any agent has solicited, accepted, obtained, agreed to accept, or attempted to obtain any gift or consideration for himself or for any other person, it shall be presumed, unless the contrary is proved, that the agent did so in contravention of section three…,.”

Counsel's argument suggests that for conviction to follow, the appellant ought to have done something which, objectively considered, showed favour or disfavour to another, in this case to Sarah.

I disagree.

As would be seen from section 3(1) of the Prevention of Corruption Act [Chapter 9:16]…, what constitutes the offence in terms of section 3(1)(a)(ii) of the Prevention of Corruption Act [Chapter 9:16] is soliciting, accepting or agreeing to accept or attempting to obtain, from any person a gift or consideration for himself or any other person as an inducement or reward, for showing or not showing or for having shown or not shown, favour or disfavor to any person in relation to his principal's affairs or business. What is punished is what is set out in that section.

In my respectful view, the learned trial magistrate, having correctly found that the appellant solicited for money for “lunch” which money was subsequently paid by Sarah through Simon whom the appellant had sent, cannot be faulted for convicting the appellant. The proved facts show that the appellant was approached by Agnes and Sarah after the Clerk of Court indicated that the matter may not be heard early. In the discussions that took place in his office he had made certain undertakings. He has also indicated to the two women that he will need money for “lunch”. Subsequent to this he had sent Simon to collect a “parcel” from the ladies one of whom had a matter pending in his court. Simon was given ZW$500,000= which he passed on to the appellant. In these circumstances, I find no merit in the argument advanced on the appellant's behalf. I therefore dismiss the appeal against conviction. There is no appeal against sentence. Nothing further needs be said. The following order is therefore made.

In passing, we wish to spare a page on the conduct of Robert Togara and Shirley Madoro, the two members of the Neighbourhood Watch Committee charged with, among other things, policing Chikofa Village, under Headman Chipindu, Chivi area.

It is refreshing to note that in a country which is literally clueless as to how effectively it can stamp out corruption in almost every sector, we have simple citizens of this country who are able to resist the temptation to be corrupted as they engaged in their policing duties. These were offered two goats by the accused in order to put a lid to the crime which the accused was facing. The two remained steadfast in the execution of their duties. Such conduct cannot go unnoticed.

The applicant approached the Constitutional Court alleging that his right to personal liberty has been infringed by the first respondent, a police officer on secondment to the second respondent (hereinafter referred to as “ZACC”). The applicant asserts that the first respondent arrested him following a warned and cautioned statement, alleging that he had committed offences of abuse of office, fraud, corrupt concealment from a principal of personal interests in a transaction, and obstruction of the course of justice.

The ground on which the alleged infringement of the applicant's right to personal liberty is based is that the arrest was unlawful for two reasons;

(i) The first reason is that the police officer who arrested the applicant had no reasonable suspicion of him having committed any of the offences he was alleged to have committed.

The applicant alleges that as a result of the arrest by the first respondent he was deprived of liberty arbitrarily or without just cause.

(ii) The second reason for the allegation that the arrest was unlawful is that the Zimbabwe Anti-Corruption Commission (ZACC), under whose authority the first respondent acted, has no powers of arrest. The contention is that the first respondent could not, on behalf of the Zimbabwe Anti-Corruption Commission, lawfully do that which his principal had no power to do….,.

The detailed reasons for the decision are now set out….,.

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 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 combatting 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.

The applicant and his co-accused were also charged with an alternative offence, namely, that of having procured insurance services from Navistar without having sought the approval of the State Procurement Board, allegedly in contravention of section 30 of the Procurement Act [Chapter 22:14], as read with section 5(4)(a)(2) and section 35 of the Procurement Regulations, S.I.171 of 2002….,.

Counsel for the State argued that even if I find that the applicant was not “a public officer” within the meaning of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) as read with section 332 of the Constitution, there is a competent verdict under the same Code which he could have been found guilty of on the same facts as canvassed at the trial. This competent verdict was said to be section 172 of the Criminal Code, the heading of which is “Corruptly concealing a transaction from a principal”. In particular, the State was relying on sub-section (1)(b)(ii). In terms thereof it is an offence for any person to assist an agent to carry out any transaction in connection with the affairs or business of the agent's principal, knowing that the agent does not intend to disclose to the principal the full nature of the transaction. Such a person shall be guilty of corruptly concealing a transaction from the principal. The penalty is a fine up to, or exceeding, level fourteen, or imprisonment for a period not exceeding twenty years, or both.

It was argued that the evidence established that the applicant and his co-accused awarded the insurance business in question without following the provisions of the Procurement Act and that this was concealed from the Board of the airline. It was further argued that section 172 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] covers a situation where one may not be a public officer.

The alternative argument by the State on the so-called competent verdict is contradictory and unfair to the applicant in several respects. It glosses over an important element of the offence, namely, corruption. That had not been the State's case in the court a quo. The case that the applicant faced in the court a quo was that he had shown favour to Navistar in the awarding of the insurance business without going to tender, allegedly thereby depriving other competitors the same chance. That is hardly the same thing as saying he was being corrupt. There was no suggestion, let alone any evidence, of corruption led.

Counsel for the State argued that once there was evidence of concealment, then a presumption operated that the concealment had been in the furtherance of the corruption. For support, he referred to section 17 as read with section 13 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

But, in my view, this was a long and desperate shot.

None of these provisions are relevant. Section 17 says that where the word “corruptly”, among others, is used with respect to the commission of a crime, then section 13 shall apply to the determination of the state of mind of the person accused of committing that crime. One then goes to section 13. Its heading is “Intention”. It says where intention is an element of any crime, the test is subjective. It is whether or not the person whose conduct is in issue intended to engage in the conduct or to produce the consequences he or she did. Sub-section (2) says motive is immaterial to intention, except in those situations provided for by the Criminal Law (Codification and Reform) Act (the Code).

With respect, there is nothing new in section 17 and section 13 of the Criminal Code. That has always been the state of our law, even before codification. The Code does not say that where concealment is proved, corruption is presumed and that the onus then shifts to the accused person. I do not think that the Appeal Court is likely to find that the applicant corruptly concealed any transaction from anyone. I do not think that it is likely to find that section 172 of the Criminal Code was a competent verdict or that the facts in the court a quo disclosed a contravention of section 172 of the Criminal Law (Codification and Reform) Act.

Furthermore, the applicant was acquitted of the alternative charge of contravening the Procurement Act that governs the procurement of goods and services by permission of the Procurement Board. Thus, even under this alternative argument by the State, the applicant has, in my view, more than a fighting chance on appeal.

The appellant was, in the alternative, charged with contravening section 173(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State's allegations, in respect of the alternative charge, were that, on a date to the prosecutor unknown, but in June 2013, and at Smuts Road, Prospect, Waterfalls, Harare the appellant and his two accomplices unlawfully and intentionally corruptly concealed from their principal, Zimbabwe Electricity Transmission and Distribution Company, a personal transaction intending to obtain a consideration in the sum of $500= after the installation by them of a pre-paid meter. The consideration, the State claimed, was not due to them in terms of the agreement which existed between their principal and them….,.

It has already been stated that the appellant and his accomplice(s) removed the conventional meter and replaced it with a pre-paid meter. They did not perform the work as an act of charity. They charged the owner of House Number 165 Smuts Road, Prospect, Waterfalls, Harare the sum of $500= for their work. The owner of the house, one Aerkanos Mutema, was adamant that he paid the stated sum to the appellant and others. He said he paid them an initial sum of $400=, and, later, at the instance of the appellant, a further sum of $100=. He said he paid the amount through his son.

There is no doubt that the appellant and his accomplice(s) concealed from their principal a personal interest in the transaction which they concluded with Mr Mutema. They obtained a consideration of $500= when they installed the pre-paid meter on to the house of Mr Mutema. They knew, at the time that they received the amount, that the consideration was not due to them. They also knew that the agreement which existed between their principal and them did not allow them to act in the manner which they did.

There is, therefore, no doubt that the appellant and his accomplice(s) contravened section 173(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act. The evidence of the prosecution supports the appellant's commission of the mentioned offence in an irrefutable way. The respondent was, accordingly, correct when it stated that the appellant should have been properly convicted of the alternative, and not the main charge.

The appellant, on his part, made a confession in the course of the court a quo's proceedings. The trial court explained to him the meaning and exigencies of special circumstances after which it invited him to state whether or not such circumstances existed in respect of the case which it had convicted him of. His submissions were as follows:

“I committed the offence after the Human Resources Department at ZETD had held several meetings with meter readers and announced that the department of meter readers was going to be closed down due to the introduction of pre-paid meters. The same department further advised us that we should look for employment elsewhere. I was led into the commission of the offence by a colleague who is currently on the run without realising the gravity of the offence…,.”…,.

The appellant, therefore, stands convicted of the alternative charge…,.

1…,.

2. The appellant be and is hereby convicted of contravening section 173(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

At the hearing of the above appeal, despite having been duly served with a notice setting the matter down, there was no appearance on behalf of the respondent. The appellant successfully applied that the respondent be held to be in default and duly barred but that the matter be determined on its merits.

After hearing submissions from counsel, we, on the turn, dismissed the appeal in its entirety and gave brief reasons in an ex tempore judgment that was read out in court. We have been requested to furnish the full reasons for the judgment and these they are.

This is an appeal against the judgment of the High Court, handed down on 10 May 2017, upholding the conviction and sentence imposed upon the appellant by the Magistrates Court.

The appellant was charged with one Count of bribery as defined under section 170(1) of the Criminal Law (Codification and Reform Act) [Chapter 9.23]. It was alleged that on 3 April 2014, in Guruve, the appellant unlawfully received a sum of money as a bribe from one Biggie Chipfunde in order for him to influence certain court process that was before the court in favour of Biggie Chipfunde. The appellant denied the allegations. In his Defence Outline he admitted receiving some money from Biggie Chipfunde, but genuinely believing that this was a donation towards his fund raising campaign to procure a map of the Guruve policing area.

After trial, the appellant was convicted and sentenced to 12 months imprisonment of which 4 months was suspended on condition of good behaviour. Dissatisfied with both the conviction and the sentence, he appealed to the High Court.

Before the High Court, he raised five grounds of appeal against his conviction as follows, and I quote these verbatim:

1. The learned magistrate erred in ignoring the glaring inconsistencies that were exhibited by the State witnesses that created doubt within the State's case.

2. The learned magistrate erred in failing to uphold and apply the basic principles of criminal law that the State must prove its case beyond any reasonable doubt.

3. The court a quo misdirected itself in failing to realise that there was no trap given that the State failed to produce the application for trap as required by the law.

4. The court a quo erred in failing to realise that there were gross violations of the police standing orders which were 7.0 of the ZRP Police Standing Order Manual Volume 1…,.; 27.1-4 of the ZRP Standing Order Volume 1 Manual…,.

5. The court a quo also failed to consider that the defendant's case stood by its Defence Outline and its evidence strongly reflected that there was no offence committed at all….,.

As stated above, the court a quo, finding no merit in all the grounds of appeal, dismissed the appeal in its entirety, prompting the appellant to note this appeal.

Before this Court, the appellant raised five (5) grounds of appeal against conviction and two against sentence.

At the hearing of the appeal, counsel for the appellant quite properly abandoned grounds of appeal 3, 4 and 5 against conviction and ground 2 against sentence. This left grounds 1 and 2 relating to the conviction and ground 1 relating to the sentence.

Against conviction, the remaining grounds of appeal were as follows:

1. The court a quo erred on a point of law by relying on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9.23], which casts a reverse onus on the appellant to prove his innocence, to dismiss the appeal against conviction.

The section breaches section 70(1)(a) of the Constitution which guarantees the appellant the right to be presumed innocent until proven guilty beyond a reasonable doubt by the State.

2. The lower court erred on a point of law by upholding a conviction which relied on section 170(2) of the Criminal Law (Codification and Reform) Act, an unconstitutional provision which breaches an accused's right to remain silent and not to be compelled to give self-incriminating evidence.

In relation to both grounds, counsel for the appellant conceded that the unconstitutionality of section 170(2) of the Criminal Law (Codification and Reform) Act was not an issue before both the trial court and the court a quo. His concession in this regard was properly made. The record confirms this to be the position.

More importantly, it is clear from the record that the provisions of the section were not invoked and relied upon by the trial court in convicting the appellant. Rather, the trial court found that the evidence that had been led from the State witnesses against the appellant was overwhelming and that the State had duly established its case beyond a reasonable doubt. At no stage in its determination of the guilt of the appellant did the trial court advert to the reverse onus imposed on the appellant by the section.

It was the finding of the trial court that the evidence of the State witnesses against the appellant went largely unchallenged as the appellant focused on challenging his entrapment, alleging that the proper procedures of setting up the trap had not been followed. The defence thus failed to put in issue the essential evidence led on behalf of the State, so found the trial court.

It is also clear from the record that the court a quo upheld the conviction of the appellant by the trial court without relying on this provision. In its determination of the appeal, the court a quo, and correctly so, did not find a basis for interfering with the factual findings that were made by the trial court.

Regarding the trap, the court was of the view that the appellant's case was not one where it could be said that, but for the trap, the accused would not have committed the offence. It thus confirmed the finding by the trial court that there was other evidence, apart from the trap, that proved beyond a reasonable doubt that the appellant had committed the offence. It was during a discussion of the trial court's treatment of the evidence led by the State on how the appellant solicited the bribe that the court a quo made the following remarks:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RAD); S v Katsande 1983 (1) ZLR 302. There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provisions of section 170. This the magistrate correctly found he failed to do.”…,.

It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Finally, and more importantly, the remarks by the court a quo on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him. Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an orbiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law. An appeal lies against the decision of the court. It does not lie against statements or remarks made by the court during the determination of the matter and which statements and remarks do not form the ratio of the judgment.

Accordingly, we took the view that there were no proper grounds of appeal before us against the conviction of the appellant.

In the result, all the grounds of appeal against conviction having been either abandoned or raised improperly, the appeal against conviction could not succeed….,.

It is on the basis of the above that, on the turn, we dismissed the above appeal in its entirety.

The appellant was convicted of bribery as defined in section 170(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

He appeals to this court against both conviction and sentence. In his notice and grounds of appeal the appellant advances five grounds of appeal;

(i) In the first ground it is averred that the court a quo erred in ignoring the glaring inconsistencies in the State witnesses' evidence which created doubt in the State case.

(ii) In the second ground, it is claimed that the State failed to prove its case beyond a reasonable doubt.

(iii) The third ground bemoaned that failure to prove that there was no formal approval for a police trap which was employed to arrest the appellant.

(iv) The fourth ground criticised the alleged gross violations of police standing orders contained in the Standing Order Volume 1 Manual.

(v) The final ground was that the court a quo failed to consider that the appellant's case was highly probable and therefore showed that no offence was committed….,.

The first ground of appeal attacks the factual findings by the court a quo in respect of credibility.

In a well-reasoned judgment by the learned trial magistrate, the following findings of fact were made. The appellant was a police officer at Guruve Police Station.; the informant, Biggie Chipfunde, had a case pending at the local court; there was an exchange of money from Biggie Chipfunde to the appellant; the appellant denies that this was a bribe handed over at his behest in order to make the matter in which Biggie Chipfunde was a suspect at his police station go away; Biggie Chipfunde alleged that the payment was in response to persistent demands for a bribe by the police officer when he had been implicated in a criminal matter reported at the police station.

The magistrate preferred the evidence given by State witnesses to that given by the appellant as to the real purpose of the payment which was recovered in a police trap sting operation. There were minor inconsistencies which the magistrate ably dealt with and undoubtedly was aware of during trial. The police team details who set the trap in which previously recorded bank notes were given to the informant were subsequently recovered from the appellant upon his arrest were produced during the trial.

I am unable to fault these factual findings by the court a quo. In any event, the question to ask, on a full appreciation of the facts found proved, is whether, in their totality, the State has proved the essential elements which make up the offence of bribery as defined in the Criminal Law Code. That section provides:

“170 Bribery

(1) Any:-

(a) Agent who obtains or agrees to obtain or solicits or agrees to accept for himself or herself or any other person any gift or consideration as an inducement or reward:-

(i) For doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal's affairs or business; or

(ii) For showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal's affairs or business; knowing or realising that there is a real risk or possibility that such gift or consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and his or her principal; or

(b) Person who, for himself or herself or any other person, gives or agrees to give or offers to an agent any gift or consideration as an inducement or reward:-

(i) For doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal's affairs or business; or

(ii) For showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal's affairs or business; knowing or realising that there is a real risk or possibility that such gift or consideration is not due to the agent in terms of any agreement or arrangement between the agent and his or her principal; shall be guilty of bribery and liable to:-

A. A fine not exceeding level fourteen or not exceeding three times the value of any consideration obtained or given in the course of the crime, whichever is the greater; or

B. Imprisonment for a period not exceeding twenty years; or both.

(2) If it is proved, in any prosecution for bribery, that:-

(a) An agent has obtained, agreed to obtain or solicited any gift or consideration, whether for himself or herself or for another person; or

(b) Any person has given, agreed to give or offered any gift or consideration:-

(i) To an agent, whether for himself or herself or for another person; or

(ii) To any other person, after agreeing with an agent to do so; it shall be presumed, unless the contrary is proved, that he or she did so in contravention of this section.

[Section amended by section 31 of Act 9 of 2006].”

The first ground fails for the above reasons….,.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provision of section 170 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This the magistrate correctly found he failed to do.

In the event the appeal against conviction fails.

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 s13(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.

The applicant can still challenge the lawfulness of his arrest in that court.

The question whether the Zimbabwe Anti-Corruption Commission has powers of arrest is closely related to the question whether the first respondent had power to arrest the applicant in the services of the Zimbabwe Anti-Corruption Commission.

These are questions which the magistrate can deal with in considering whether the arrest was lawful or not.

The determination of the question whether the Zimbabwe Anti-Corruption Commission has powers of arrest involves an answer to the question whether the Zimbabwe Anti-Corruption Commission, in the exercise of its functions, could have the first respondent, a police officer, arrest any person if it reasonably suspects the person of having committed an offence falling within its jurisdiction, provided the police officer also reasonably suspects the person of having committed the offence. This is a matter that the magistrate hearing the question of whether the first respondent reasonably suspected the applicant of having committed the offences falling within the Zimbabwe Anti-Corruption Commission's jurisdiction could competently determine.

The inquiry into the question whether the Zimbabwe Anti-Corruption Commission has arresting powers would be an academic exercise without first determining whether the first respondent, as a police officer on secondment, had arresting powers he could exercise in the services of the Zimbabwe Anti-Corruption Commission.

Even before making that finding, the most important inquiry would be whether or not the first respondent had a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement….,.

Section 3 of the Police (Transfer and Secondment) Regulations, S.I.819A of 1980 provides for the secondment of police officers to employment outside of the Regular Force.

Section 24 of the Police Act [Chapter 11:10] provides:

“24 Powers and authority to cease on vacation of office

When any member, for any reason, ceases to hold or exercise his office, the powers, functions and authority vested in him as a member shall cease immediately.”

The import of section 24 of the Police Act [Chapter 11:10] is that the only instance in which a member of the Police Force ceases to have the powers, functions and authority vested in him as a member is vacation of office. The services as a member are terminated upon vacation of office. A police officer does not cease to hold or exercise his office by reason of secondment. From a reading of section 3 of the Police (Transfer and Secondment) Regulations, S.I.819A of 1980, secondment is when a member of the Regular Force is transferred to employment outside the Regular Force in the service of the State upon such terms and conditions as may be fixed by the Commissioner-General. Such an officer continues to have the powers vested in a member of the Police Force - including the power of arrest….,.

Whatever view the applicant takes of the relationship between the Zimbabwe Anti-Corruption Commission and the first respondent, the question of what section 13 of the Anti-Corruption Commission Act [Chapter 9:22], as read with section 1 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22], means, would need to be determined. The Magistrates Court would have to answer the question whether the statutory provision means that the Zimbabwe Anti-Corruption Commission can have a person arrested whom it reasonably suspects of having committed an offence falling within its jurisdiction by a police officer who forms his or her own reasonable suspicion of the person having committed the offence.

Would such action by the Zimbabwe Anti-Corruption Commission and the police officer concerned not produce a lawful arrest?