via Govt taken to Concourt over complaints law | The Herald January 11, 2016
Daniel Nemukuyu Senior Court Reporter
Government has been taken to the Constitutional Court for failure to enact a law providing an independent mechanism for receiving and investigating public complaints on the misconduct of security forces in terms of the Constitution of Zimbabwe.
In terms of Section 210 of the Constitution, an Act of Parliament must be passed laying out how complaints against abuse of authority by the police, defence forces, prison officers and State intelligence services should be independently investigated.
Two men, Mr Hilton Chironga and Mr Rashid Stuart Mahiya, filed the application at the Constitutional Court seeking an order declaring the Government to be in breach of the supreme law.
The pair argued that Government had failed to enact the law for close to three years since the promulgation of the new Constitution in 2013.
Section 210 of the new Constitution of Zimbabwe reads:
“An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”
In the constitutional challenge, the Minister of Justice, Legal and Parliamentary Affairs, the Minister of Home Affairs, the Minister of Defence and the Government of Zimbabwe are listed as respondents.
Failure to come up with the law, Mr Chironga and Mr Mahiya argued, was a violation of the people’s right to equal protection and benefit of the law in terms of Section 56 (1) of the Constitution.
They want the court to order Government to gazette the Bill envisaged in Section 210 of the Constitution of Zimbabwe within 45 days from the date of the issuance of the order.
Sources said most of the complaints raised by citizens against the State were directed against the police, because police officers come into contact with a wider section of the public than the defence forces and other security service personnel.
The application will be heard this week by the full Constitutional Court bench.
In the heads of argument filed by the two’s lawyer, Mr Tendai Biti of Biti Law Chambers, Government was accused of denigrating the supremacy of the Constitution by failing to comply with the law.
“Thus, in denying the applicants the benefit of Section 210 of the Constitution, the respondents are in fact breaching, not just Article 56 (1) of the Constitution insofar as it protects the applicants, but also denigrating the supremacy of the Constitution,” read the heads of argument.
The intention of the framers of the Constitution in including Section 210 of the Constitution was to protect the masses from abuse by the security forces, they argued.
“Applying the above to the instant matter, Section 210, is a provision that the framers of the Constitution, intended to advance the cause and case of ordinary citizens abused by the security forces,” reads the heads of argument.
“The framers of the Constitution, therefore, felt that citizens needed to be protected by the board set up in Section 210, and that cannot be placed in dispute.”