Source: High Court clarifies over-detention clause | The Herald January 31, 2019
Patrick Chitumba Midlands Bureau Chief
A BULAWAYO High Court judge has lamented the misinterpretation of the over-detention of suspects section of the Constitution by magistrates who release suspects without considering the gravity of the matter at hand or effort put by the police in bringing the suspect to court.
Officially opening the 2019 legal year for Gweru High Court Circuit on Monday, Bulawayo High Court judge Justice Thompson Mabhikwa said even if the suspect is over-detained, there was always the avenue of suing in a civil court for redress.
He said the police need maximum support in the discharge of their duties, particularly from other players in the justice delivery system.
“It is for that reason that I have always held the view that quite often Section 50 (3) of the Constitution is either abused or misinterpreted. The section reads: ‘any person who is not brought to court within the 48 hour period referred to in Subsection (2) must be released immediately unless their detention has earlier been extended by a competent court’,” he said.
“Now imagine the police working hard to apprehend a suspect accused of having committed heinous crimes, arresting him at times after months.
“The suspect is taken to court and immediately released, allegedly in accordance with Section 50 (3) of the Constitution, leaving the police bewildered and pondering what the suspect may do next, with the possibility of absconding quite high.”
Justice Mabhikwa said it has always been the case that a suspect may complain of assault or over-detention.
“The court makes a short enquiry and records the said complaint. It then directs or orders the prosecution to have the complainant investigated so that whoever over-detained or assaulted the suspect is held to account.
“The suspect also remains with the open avenue of suing in a civil court for redress. That is all.
“For his appearance on that day, the court proceeds as usual properly assessing whether or not he is entitled to bail, remembering also the rules of the Criminal Procedure and Evidence Act.”
Justice Mabhikwa said what Section 50 (3) holds that a person who has not been brought to court within the 48-hour period in the absence of an extension by a competent court is entitled to seek immediate release from the continued unlawful detention.
“Once that person has been brought to court a different set of rules apply,” he said.