RECENT events in Zimbabwe have put into focus the police's powers of arrest,
detention, search and seizure.
More than 2000 business persons, including some top-notch business
executives and politicians, have recently been arrested and detained for
allegedly flouting the recently gazetted laws pertaining to price controls.
It is my considered view that members of the public should be made aware of
their fundamental constitutional rights vis-a-vis the police's powers of
arrest, detention, search and seizure.
It is not in dispute that these business-persons have been arrested and
detained by the police in very curious, and in some cases, totally unlawful
and unjustifiable circumstances.
An arrest involves the deprivation of an individual's liberty and thus it
should not be lightly resorted to. The Constitution of Zimbabwe states that
the right to liberty is a fundamental human right, solidly enshrined in the
justifiable Bill of Rights.
It therefore goes without saying that a police officer would only arrest a
person when it is reasonable and necessary in the circumstances. Recent
events in Zimbabwe have lent credibility to the generally held perception
that the Zimbabwe Republic Police force is partisan, biased, unprofessional
and insensitive to basic and fundamental human rights.
We have come across cases where the police have promptly arrested people and
placed them in custody in clearly unreasonable, unjustifiable and malicious
circumstances. The writer perceives this type of shameful conduct as a gross
abuse of the powers of arrest by the police. Such a blatant and
reprehensible abuse of the powers of arrest should never be condemned in a
democratic state.
The police should always desist from the habit of playing to the gallery and
proceeding to arrest a person first and then investigate him later. Wherever
possible, the police should endeavour to obtain a warrant before arresting a
person.
However, it is conceded that in very many circumstances, it may be
reasonable and justifiable for a police officer to arrest a person without a
warrant of arrest.
The recent spate of arrests in the so-called war against unjustifiably high
prices is in more ways than one regrettable.
Surely, was there any reason to arrest and promptly detain business- people
instead of summoning them to appear in court on a particular day? This
should have been the case particularly because the majority of the people
arrested are otherwise law-abiding and useful members of society with fixed
places of abode and chances are they were most unlikely going to abscond had
they been summoned to appear in court.
A properly constituted and professional police force should never allow
itself to be manipulated and used by certain powerful individuals and
politicians to push their own sinister and nefarious agendas. Indeed,
members of the police force should always be acutely aware that they can be
sued for damages by persons who might have been wrongfully, maliciously, and
unlawfully arrested and detained.
The Police Act (Chapter 11;10) and the State Liabilities Act (Chapter 8:14),
provide the relevant legislative procedures in terms of which members of the
police can be sued. Recent events in our country have left the reputation
and professionalism of the Zimbabwe Republic Police severely compromised.
This will inevitably lead to members of society generally viewing the police
force as an object of contempt, hate and ridicule.
Police officers should not simply proceed to seize items of property from
arrested people without following proper legal channels. In general, a
police officer who arrests a person may search such a person but the police
officer is required to place in safe custody all items taken. It is improper
and unlawful for police officers to take away seized items of property and
thereafter proceed to deal with the same as they deem fit.
In accordance with the laws of Zimbabwe, unless made by a medical officer,
the search of a woman must be made by a woman and must be made with strict
regard to decency. A female police officer may require a female suspect to
remove any clothing she is wearing if the removal of the suspected clothing
is necessary and reasonable for an effective search. However, the suspects'
body cavities may not be searched. At any rate, the search of any person,
male or female, must be conducted with strict regard to decency.
There is a difference between seizing articles and placing articles in safe
custody. Articles that have been seized may not be returned to a suspect at
a later occasion whereas items that have been placed in safe custody would
have to be returned to the arrested person at all times.
The Police can only seize property that is concerned in or on reasonable
grounds believed to be concerned in the commission and suspected commission
of an offence in Zimbabwe or elsewhere; property which on reasonable
grounds; is believed to afford evidence of the commission or suspected
commission of an offence in Zimbabwe or elsewhere and property which, on
reasonable grounds, is believed to be intended to be used in the commission
of an offence.
In other words, the police cannot just seize people's goods with reckless
abandon. The police should always ensure that people are arrested when
necessary and also that detention should be the exception and not the norm.
The Zimbabwe Republic Police should strenuously fight against the perception
that it has degenerated into a partisan and corrupt police force that is
frequently used and abused by powerful and influential citizens to harass,
torment and humiliate business-people as well as people who are deemed to be
politically hostile to the status quo.
The Zimbabwe Republic Police should play a central role in the promotion of
the respect for the rule of law and individual rights of people. The police
should help to foster a culture of democracy and should go out of its way to
protect the weak and the vulnerable. A police force should be the people's
friend instead of being the people's number one enemy.
The Zimbabwe Republic Police should be a catalyst in the fight against
rampant human rights abuses and political intolerance. As an essential and
powerful tool of the State, the Zimbabwe Republic Police should not allow
itself to degenerate into a power-drunk machine ready to crush and suppress
innocent and law-abiding people's peaceful demonstrations at the slightest
of an excuse.
Power corrupts and absolute power corrupts absolutely. This reminds the
writer of a moving speech made by President Thabo Mbeki of South Africa at
the annual general meeting of the SADC Electoral Commissions forum in Dar es
Salaam, Tanzania on September 27, 1999. In his address, President Mbeki
said:
"Inevitably, therefore, the State will remain a powerful, venerated and
awe-inspiring social institution. Necessarily, those who manage this
institution have themselves to be seen to be powerful and therefore
awe-inspiring. Inherent in this is the imperative that these powerful
persons should remain powerful until death deprives them of the capacity to
exercise power".
For us in Zimbabwe, its still a very long walk to freedom!
Obert Chaurura Gutu is a Zimbabwean lawyer writing from Harare
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