Source: Spikes use illegal, say legal experts | The Herald April 11, 2017
Herald Reporters
The use of spikes by police to enforce compliance is illegal with no space in a civilised society, as there are other modern and effective methods of traffic control and management, legal experts and transport operators have said.
This comes as Government has said it is ready to invoke the Criminal Law (Codification and Reform) Act Chapter IV, Section 38 to charge police officers who throw spikes at moving vehicles, who face up to 10 years in prison and/or a fine of up to $3 000.
Deputy Minister of Home Affairs Cde Obedingwa Mguni, said members of the public who witness the “dangerous practice” should take video or picture evidence, so that the cops can be punished in the courts.
Parliamentary Legal Committee (PLC) member Cde Ziyambi Ziyambi said the use of spikes was in violation of both the Constitution and Section 38 of Criminal Law (Codification and Reform Act).
Cde Ziyambi said Section 52 and 53 provided for right to personal security and protection from cruel and inhuman treatment, while Section 38 of Criminal Law criminalise the obsctruction or endangering free movement of persons or traffic.
Section 38 of the Criminal Law reads as follows: “Any person who — (a)throws or propels or prepares to throw or propel any missile, article or thing at any person, motor vehicle, boat, aircraft or building with the intention or realising that there is a real risk or possibility of causing damage or injury; or (b) without lawful excuse, the proof whereof lies on him or her, overturns or attempts to overturn any motor vehicle, boat or aircraft. . . shall be guilty of obstructing or endangering the free movement of persons or traffic and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.”
“When you throw a spike, you are clearly causing bodily harm or injury,” said Cde Ziyambi, who is Zvimba West MP (Zanu-PF).
“Is that not cruel or inhuman treatment. I do not see where the practice or carrying the spikes is supported by any law.”
Cde Ziyambi said police should use modern technology to deal with errant commuter omnibus drivers like scanners or tollgates.
Another PLC member, Cde Fortune Chasi, said there was need to strike a balance between the desire to enforce the law and protect the public.
“The police can and should not throw the spikes without regard to the law and safety of human life and property,” he said. “It is not fair to just blame the police.”
Dean of the Faculty of Law at the University of Zimbabwe Professor Lovemore Madhuku said it was unlawful for police to take the law into their own hands.
“There is no law which say police shall use spikes,” he said. “If a person is not under arrest why should they be detained? Police should arrest or leave people to do their business. It is a clear example of abuse of office.”
Greater Harare Association of Commuter Operators, secretary general Mr Ngoni Katsvairo said there was need to use the gadgets responsibly.
“We are, however, surprised that in spite of the many spikes being used at mushikashika in the CBD, there has been increased existence of pirate taxis, meaning that the spikes are not actually serving their purpose,” he said.
Chitungwiza Commuter Omnibus Operators’ Association spokesperson Mr Farai Muza, said police could be charged with causing malicious damage to property when they use spikes.
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