BY DESMOND CHINGARANDE
THE Passengers Association of Zimbabwe (PAZ) has filed an appeal against a High Court judgment giving the police powers to use spikes when dealing with errant motorists on the country’s roads.
PAZ, together with private taxi driver, Bernard Murizani, cited Police Commissioner-General Godwin Matanga, the Police Service Commission and Home Affairs minister Kazembe Kazembe in the application, where they demanded a ban on the use of spikes and teargas on passenger vehicles by the law enforcement agents.
High Court judge Justice Owen Tagu early this month dismissed the PAZ application, saying while the application was noble, the court could not disempower the police from enforcing law and order as there were times when the use of spikes would prove necessary.
But in its appeal, PAZ complained that Justice Tagu sanctioned unconstitutional conduct.
“The High Court erred and misdirected itself in making a finding that the use of spikes, smashing of windscreens and throwing of teargas in public transport by Zimbabwe Republic Police officers, leading to damage to property, bodily injuries and loss of lives of passengers and other members of the public does not amount to violation of the rights to life and to personal security as ingrained in sections 48 and 52, respectively, of the Constitution of Zimbabwe Amendment (No 20) Act, 2013,” PAZ submitted.
It said the High Court further erred and misdirected itself in finding that the illegal conduct of outlawed transport operators, known as mushikashika, justified or necessitated the excessive use of force outside the parameters stipulated under section 42 of the Criminal Procedure and Evidence Act.
The respondents had submitted in their application that the use of spikes and teargas was a must as it was the only way to deal with errant mushikashika drivers.
“The operators of mushikashika are not just committing traffic violations, but other crimes that include abusing drugs, harassment of commuters, especially women, theft, and robberies. The private taxis tend to flee and resist arrest whenever they see police. To grant the application would be tantamount to legalising the actions of these errant motorists as the police would be incapacitated to deal with them,” the respondents said.
Justice Tagu upheld their challenge.
“While the application has been filed to protect commuters, one thing that boggles this court’s mind is why members of the first applicant (PAZ) have this high affinity of boarding illegal vehicles at undesignated points while there is conventional transport such as Zupco [Zimbabwe United Passenger Company] and registered taxis,” he ruled.
“I, therefore, agree that the order being sought by the applicants, that there be a blanket ban on the use of spikes and tear gas, is unassailable. However, that is not to say that the police should do so, because it is illegal, but circumstances may dictate that it be done. For these reasons, the application will fail as the applicants are approaching the court with dirty hands.”
The appeal is yet to be heard.