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ABC'S of pre-trial procedure
National Association of Non-Governmental Organisations in Zimbabwe (NANGO)
Extracted from Issue 3, Zim-NGO Voice
March 21, 2005

In view of the nature of the operating environment, where unlawful arrests are a possibility, we are pleased to provide information [Supplied by one of our members] on basic information regarding pre-trial arrests.

(a) Constitution of Zimbabwe
Any act done or carried out by any person or authority from the time of an arrest up until trial must be in strict accordance to our Constitution.

Section 13 of the Constitution requires that any deprivation of liberty must be justified by a court order or by there having been a "reasonable suspicion" of a criminal offence having been or about to be committed. An
arrested person must be informed, to his/her understanding, of the grounds of arrest and must be permitted to have access to a lawyer and to be brought before a court without undue delay to be tried within a reasonable period of time.

While in detention / police custody section 15 of the Constitution safeguards the arrested person from any acts of torture or inhuman or degrading punishment or other such treatment. In terms of section 18 of
the Constitution an arrested person alleged to have committed an offence should be presumed innocent until he/she is proved or pleads guilty – thus he/she cannot be held as guilty by his/her arrester.

(b) Criminal Procedure and Evidence Act Chapter 9:07 (CP&A Act)
An arrest can be made with or without a warrant of arrest. In terms of section 25 a person can only be arrested without a warrant where he/she has committed or intends to commit an offence or where the arresting officer has reasonable grounds to suspect that there has been a commission of an offence.

A person cannot and must not be arrested by a peace officer merely on a whim or presumption lacking any investigation into the facts and circumstances surrounding the alleged commission of an offence. Should there be no reasonable suspicion that an offence has been committed then such an arrest is not lawful and is a deprivation of the right to liberty giving rise to another right to claim compensation for such unlawful arrest from the arresting person or the authority under which they act.

Even where a judge or magistrate issues a warrant of arrest, the issuing authority must have reasonable grounds of suspicion that the person has committed an offence.  Whether arrested without warrant or with warrant a person has the right to be informed to his/her understanding of the reasons for his/her arrest or detention. Where an arrest is based on a warrant the person to be so arrested must demand the production of such warrant and an explanation of its contents and effect. Subsequent to any arrest, with or without a warrant, the arrested person must be taken to a police station or charge office as soon as possible. The arrested person has the right of access to a lawyer of his/her choice.

An arrested person also has a right to remain silent and not sign any document, statement or confession. Thus where one is arrested it is best they refuse to sign anything or say anything concerning the alleged
offence until their lawyer arrives to assist them in such undertakings. It must be noted that in terms of section 256 (2) of the CP&A Act a confession or statement to the commission of an offence which is proved by an arrested person to have been given by him or her under some undue influence thus not given freely and voluntarily shall not stand as evidence against such an arrested person.

Section 32 of the CP&A Act prohibits the detention of an arrested person for more than forty-eight hours unless s/he is brought before a judge or magistrate who then order his/her further detention or a warrant for his/her further detention is obtained from such a magistrate or judge. However where the forty-eight hour period expires on a day which is not a court day or on any court day after four o'clock in the afternoon, the said period shall be deemed to expire at four o'clock in the afternoon of
the court day next succeeding that day.

A recent amendment of the CP&A Act allows the detention of persons by the police for periods ranging from 7 to 21 days, during which periods the courts entertain no application for bail. This new provision relates to certain specified economic crimes, and may be particularly relevant.

NANGO is the representative body of NGOs in Zimbabwe. Its mission is to create space and identify opportunities for NGOs to pursue their mission and visions and to facilitate the building of members' capacities, resource bases and synergies. Your feedback is highly welcome. We invite organizations to forward us with breaking news to be incorporated in this Email News letter.

For more information contact Communications and Advocacy team on TEL- 732612, FAX 794973 or EMAIL bob@nango.org.zw, fambai@nango.org.zw.

Please ask for Bob Muchabaiwa or Fambai Ngirande

Visit the NANGO fact sheet

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