Source: Alex Magaisa
The purpose of this manual is to provide a concise summary of the constitutional rights of individuals in the event of being arrested by police or other security agents in Zimbabwe. These rights are drawn from sections 50 and 70 of the Constitution, which guarantee the rights of arrested and accused persons, respectively. These are two of the most important provisions in the Declaration of Rights, which give greater substance to the right to personal liberty provided for under section 49 of the Constitution.
Some of these rules would ordinarily be in a criminal code, but framers of the Constitution believed they were so fundamental that they needed to be captured in the highest law of the land and in the Declaration of Rights, for more robust protection. I am aware that there are many myths that go around regarding police conduct and what they are entitled to do at police stations. A lot of this is illegal and unconstitutional. It is important to bust these myths in order to liberate people from their own fear and misconceptions. I would add that it is the duty of every citizen to know these rights and to assert them whenever necessary. This is why I thought it necessary to write this manual.
Right to be informed of reason for arrest
You MUST be informed at the time of arrest exactly why you have been arrested. If the arresting officer does not tell you at the time of the arrest the reason for the arrest, make a note of this omission. You can use this when you go to court to challenge the lawfulness of the arrest.
Right to make contact with lawyer, spouse, etc
You are also entitled to contact your spouse or partner, or a relative or legal practitioner, or anyone else of your choice. This is at the expense of the State. In other words, it’s your constitutional right to use the phone or other communication system at the police station. The police must inform you of this right without delay. Again if you are denied this, make a note as you can use it to challenge the lawfulness of your arrest.
Right to consult lawyer or doctor in private
You are entitled to consult your lawyer or medical doctor at your own expense and in private. The police must inform you of this right without delay. If you are denied this right, make a note as you can use it to challenge the lawfulness of your arrest.
Right to be treated humanely and with dignity
You must be treated humanely and with respect for your inherent dignity. The conditions under which one is kept after arrest must be humane. They have no right to beat you up while in custody. The right to human dignity is one of the most fundamental rights upon which all other rights are built. If you are subjected to inhumane and degrading treatment and feel your dignity is impaired, this can constitute a ground to challenge the lawfulness of your arrest when you go to court.
Right to pre-trial release
You have a right to be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying your continued detention. This means ordinarily you are entitled to be released from custody unless there is a very serious reason why you should be kept in custody. This underpins the right to be released on bail when you go to court. It also means bail conditions must not be unreasonable, such as a high fee which you cannot afford.
Right to challenge lawfulness of arrest
You are entitled to challenge the lawfulness of your arrest in person before a court and you must be released promptly if the arrest is held to be unlawful. This means the police must take you to court within the maximum period they are allowed to hold you, which is 48 hours from the time of your arrest. Further, you must appear in person before a court of law. This is your chance to raise any of the violations that you suffered which might affect the lawfulness of the arrest, e.g. you were not informed of the reason for your arrest at the time it happened, you were treated inhumanely and contrary to human dignity, you were not allowed to contact your spouse or lawyer or doctor, etc. The judge or magistrate must consider this in determining whether or not the arrest was lawful.
48 hour-period includes weekends and public holidays
If you are arrested you must be brought to court within 48 hours of the arrest even if the 48 hours end on a weekend or a public holiday. The police cannot say it’s a weekend, therefore you cannot go to court. If the 48 hours ends on a Saturday or Sunday or a public holiday, and the police have not taken you to court, you must be released immediately. This removes the abuse of the past whereby the police could arrest a person on a Friday, with the intention of keeping him in custody until Monday using the argument that the courts did not sit on weekends or public holidays. This myth still persists but it has no basis at law. If the police keep you for more than 48 hours, even if it is a weekend or public holiday, the arrest will be unlawful and you can challenge its lawfulness when next you appear in court. A court of law is the only competent authority which can extend the detention beyond 48 hours.
If you are going to be detained beyond the 48 hours allowed by law, you must be informed at the first court appearance after being arrested and if you are going to be detained further, the reason for the continued detention must be clearly communicated to you.
Right to remain silent
You are entitled to remain silent and to be informed of this right promptly when you are arrest. You must also be informed of the consequences of remaining silent and of not remaining silent.
Right against self-incrimination
The Constitution protects you against self-incrimination. In other words, you have a right not to make any statement which would implicate you in a crime or expose you to prosecution.
Right not to be compelled to make a confession or admission
You must not be compelled to make any confession or admission. This is consistent with the right against self-incrimination. The police must not use force or any other means to compel a person to confess or admit to an offence. If you have been compelled to make a confession or admission in your warned and cautioned statement, you must advise the judicial officer when you appear in court. This evidence will be inadmissible and the court may bar any further prosecution.
Freedom from torture, inhuman or degrading treatment
The Constitution protects you against torture, cruel, inhuman or degrading treatment. Torture is universally condemned and perpetrators can face prosecution at international tribunals. Police or any other security agents have no right to subject arrested persons to cruel, inhuman or degrading treatment. Beating up arrested persons or otherwise punishing them constitutes torture, cruel, inhuman or degrading treatment. If it happens to you, report it to the judicial officer when you next appear in court.
Presumption of innocence
You are presumed innocent until proven guilty. It is a trite principle of law that he who alleges must prove and therefore, the state which prosecutes has the obligation to prove your guilt beyond any reasonable doubt.
Language rights
The arresting officer and all public officers dealing with you must communicate in a language that you understand. If they refuse, make a note of their refusal and advise your lawyer or the court. That violation can be grounds for declaring the arrest or detention unlawful under the Constitution.
Freedom of communication
While in detention, you are entitled to communicate with, and be visited by a spouse or partner; relative; your chosen religious counsellor; your lawyer; your medical doctor; and subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, by anyone else of their choice.
Conditions of detention
As a detainee, you are entitled to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment.
Habeas Corpus
One of the most fundamental rights in the right to habeas corpus (Latin for “you have the body”). It is a right to apply to court to compel the state or an official believed to be holding a person to bring him to court to justify his detention or to have the person released. Therefore, if there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed or declaring the detention to be illegal and ordering the detained person’s prompt release. This is one of the most important rights, dating back centuries and is fundamental to the protection of the right to liberty. This fundamental right is useful where a person disappears and is believed to be in the hands of the state or its agents. Any person can apply for an order of habeas corpus, which basically compels the state to produce the person and for the court to declare the detention illegal and order release.
Right to sue for compensation
Any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention. However a judicial officer or any other public officer acting reasonably and in good faith and without culpable ignorance or negligence will be protected from liability. This is an important provision which means police officers who unreasonably and in bad faith arrest a person and act with culpable ignorance or negligence can be sued and will be liable in a personal capacity. An illegally arrested person can sue them in their personal capacity. This is far easier than suing the state, which never pays damages and its assets are protected under the State Liabilities Act. Now, however, the Constitution provides a clear avenue to sue police officers and other security agents who illegally arrest or mistreat citizens.
Illegality of arrest
If an arrest contravenes any part of section 50 of the Constitution, which protects the rights of arrested persons, such an arrest will be illegal and the person will be released by a court of law. It is a fundamental right guaranteed in section 50 for an arrested person can challenge the lawfulness of his arrest.
Conclusion
These rights are very important. If an arrested or accused person can demonstrate that any of these rights have been contravened, the arrest or detention will be declared illegal and evidence obtained through illegal means may be excluded. The police may act with impunity at the police station, but you have a right to raise these issues at court and any contraventions found will jeopardise the state case and set you free.
Now you know your rights, but don’t be selfish. Please share as widely as possible.
Ndatenda. Siyabonga. Thank you.
Source: Alex Magaisa