Police can’t detain at their pleasure

via Police can’t detain at their pleasure – NewsDay Zimbabwe November 6, 2015

As Zimbabweans, we should appreciate that while the self-inflicted madness has been going on around us, the Judiciary has largely maintained sanity and sobriety.

Echoes by Conway Tutani

Among State institutions, the Judiciary stands out as functionally effective although with some tweaking needed here and there. Apart from the era of the so-called fast-track land reform from the year 2000, when the courts got caught up in the emotive politics of the day, the Judiciary has served the nation well as an independent State institution under the separation of powers between itself, the Executive (the Presidency/Government) and the Legislature (Parliament). It has stuck to the letter and spirit of the equality of all people before the law. It has hardly been deterred, distracted or diverted from that.

On that score, Chief Justice Godfrey Chidyausiku has been coming into his own. He has become a strong, confident, independent legal mind. One doesn’t have to agree with each and every one of his rulings because we all see things differently, but they are well and soundly arrived at.

In a landmark ruling in September this year striking down Section 121 (3) of the Criminal Procedure and Evidence Act, which empowered the State to continue detaining for extendable seven-day periods suspects who would have been granted bail by the courts, Chief Justice Chidyausiku cogently and vehemently queried: “On what legal basis is a person denied his liberty for seven days? Prison is not a five-star hotel. Surely your sense of justice should make you think it’s untenable . . . You derive pleasure in keeping the person in custody for seven more days. It is more sadistic than legal.”

Indeed, Telecel executive chairman James Makamba was the first victim of this sadistic law which was crafted specifically to continually detain him after several successful bail applications in 2004 on unsubstantiated charges of externalisation of foreign currency.

And, of course, the tone is set at the top. A good number of magistrates are now showing that legal tenacity, unlike the timidity of the past where they went along with untenable State decisions just to get along, to be seen to be on the right side of power, making pro-establishment ruling after pro-establishment ruling.

So, it was quite refreshing this week when Harare provincial magistrate Tendai Mahwe released on bail Sunday Mail editor Mabasa Sasa and reporters Brian Chitemba and Tinashe Farawo, who had endured two nights in police custody. This was after they had been arrested for “peddling falsehoods” in a report that a top police officer had been fingered as part of a syndicate poaching elephants in Hwange National Park.

Ruled the magistrate in his professional — not personal — capacity: “No compelling reasons have been advanced by the State and to deny bail in this case would make a mockery of the whole judiciary system as the State consents to bail in more serious cases than this one.”

But, according to police spokesperson Assistant Commissioner Charity Charamba, the story has tarnished the image of the whole Zimbabwe Republic Police (ZRP). How can that be when only one individual — whether senior or not — has been implicated and, furthermore, not named? The police response has been so disproportionate as to raise questions that the story could actually be accurate and someone is determined to silence the journalists from probing further. The normal police reaction would be to conduct an internal investigation and establish the facts of the matter, not to outrightly condemn the reporters as “peddling falsehoods”.

Obviously, somebody — mostly likely with inside knowledge of the high-level poaching syndicates — has blown the whistle and it is for the police, as trained and experienced professionals, to act on that. It is for them to get the message, not the messenger. There is no smoke without fire. Instead, the ZRP should view the reporters as having lit a fire under them to get them to act quickly and forcefully where they have not been doing enough before. They should jump out of their comfort zones and act.

If they cannot investigate themselves as interested parties, then an external probe ought to be set up with independent, disinterested investigators. Only an unbiased, impartial inquiry led by people not influenced by considerations of personal advantage or concealment will get to the heart of the matter.

The ZRP has for a long time been behaving in a roguish manner becoming a law unto itself. The image of the force has been severely damaged in the eyes of the public. We see that daily on the roads where the traffic police impound vehicles of those motorists and kombi crews who do not play ball by refusing to pay bribes under the the guise of spot fines. High Court judge Justice Francis Bere pointed this out in February this year: “There is no law which compels a motorist to deposit a fine with the police if he desires to challenge the alleged offence, but it looks like motorists are forced to pay these fines on our public roads irrespective of their attitude to the charges . . . All these provisions of the law are being flouted, with everyone watching helplessly whilst this illegality continues.”

Of course, then Information minister Jonathan Moyo characteristically came to the police’s defence. Not many people were surprised because not only was that he was required to do so, but he is Mister Know-It-All.

He is that someone who believes they have got the answer to every question even if the question hasn’t been asked, or if they really don’t have the answer — but, of course, they believe they do. That’s whimsical.

Now they are trying to silence journalists who have raised possible criminality among the top brass in the ZRP. This doesn’t play well among the public.
It should not take much for Police Commissioner-General Augustine Chihuri — with his PhD — to see that people cannot be arrested and detained at the pleasure or whim of the police

The treatment of the Sunday Mail journalists has been more sadistic than legal.

●Conway Nkumbuzo Tutani is a Harare-based columnist. Email: nkumbuzo@gmail.com