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Certain acts by the police illegal
lVote Muza,Financial Gazette (Zimbabwe)
July 08, 2004

lVote Muza is a legal practitioner with Gutu & Chikowero, email

In a democracy, the police forces’ key function is the preservation of law and order.

This duty is important because if carried out properly, it allows a proper functioning of the state and permits unhindered enjoyment of freedom, equality and fraternity by citizens.

Policing responsibility emanate from the constitution which is the supreme law of the land.

Over the years, there has developed abundant evidence proving that the Zimbabwe Republic Police has failed to discharge its constitutional duties freely and fairly. Instead of being a professional, people-friendly force, it has lately gained notoriety for being generally violence-prone, and hostile to citizens whom it is supposed to protect.

Its reputation has been tainted and dented by the high incidence of bribery, torture, malicious arrests and open bias when dealing with political matters. Heavy-handedness and selective enforcement of the law are habits that have encroached and taken root within the force.

This scenario is most unfortunate and unwelcome because it posses a great danger not only to the rights of citizens, but to the very security of the state which ironically the police is put in place to protect.

Every person in Zimbabwe is generally entitled to the right to liberty and equal protection before the law. This right is fundamental and originates from the Bill of Rights in our constitution.

However, this right as far as our police is concerned only appears to exist on paper, essentially because the same police has repeatedly shown gross contempt of people’s inalienable constitutional rights.

It is important to expose one way by which the police has consciously violated peoples basic rights in open violation of the law.

The so-called "ticket" offences provides a better illustration of the forces’ obsession with depriving citizens of their freedom.

These offences usually occur in traffic, liquor assault and other minor transgressions covered under the Miscellaneous Offences Act (Chapter 9:15).

With specific reference to traffic offences, the common perception is that issuing of tickets has been done, and is still being done more as a fundraising exercise than a law enforcement one.

This only exposes the police’s hypocrisy and further confirms that certain traffic blitz and other operations are not done in good faith.

Section 356 read together with Section 141 of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that an accused person may pay a fine for certain minor offences if he/ she does not want to appear in court.

This section obviously makes payment of admission of guilt fines optional and not mandatory.

The payment of a fine to an issuing officer is an unequivocal admission of guilt. Infact it is equivalent to tendering a plea of guilty in an open court.

An admission of guilt form, which is as noted commonly referred to by legally lay persons as a "ticket" has a bold warning on its face. It advises suspects not to deposit fines or sign the document if one is not admitting to the offence. If one opts not to pay a fine, he must appear in court on the date appearing on the face of the form to challenge the so-called ticket.

The danger the driving public faces is that, if they challenge the issuing officer by refusing to pay a fine, they will be threatened with detention or may even be detained.

Thus most individuals end up coughing up fines that they might at law not be entitled to pay merely to avoid the inconvenience of incarceration.

The police now call these spontaneous deposit fines "spot fines".

However, this writer is not aware of any law that provides for "spot fines".

This unlawful procedure is an invention of the police that no one has dared to challenge for fear of reprisals through the conman arbitrary deprivation of liberty.

The habit of making offenders pay spot fines is highly malicious, a show of heavy-handedness, a dangerous abuse of power and illegal. It appears to be a well-orchestrated grand act of extortion.

It is important to observe that the habit of paying undeserved fines makes one accumulate previous convictions.

The payment of an admission of guilt fine is by way of procedure forwarded to a magistrate who confirms its propriety by affixing his signature to the form. Once the form is so signed and confirmed, it becomes a conviction.

It is not only traffic matters that have invited this abuse of the public by the police. The Miscellaneous Offences Act criminalises various nuisances like laughing, singing and begging in a public place. Section 4 of the same Act outlaws the loitering in public place for the purposes of prostitution between the hours of 6pm and 6am.

It is interesting to note that if one loiters outside the prescribed time limits, one will not be covered by the section. Consequently, a person can loiter in a public place during the day for purposes of prostitution without inviting the wrath of the law-enforcement agents.

While Section 4 might have been conceived for the right intentions, in reality, especially as relates to general police conduct, it appears to be a law made for the members of the female gender.

This is because when enforcing this provision the police have only targeted females because generally only females are deemed to be prostitutes. The males who sustain the commercial sex industry seen during odd hours are rarely apprehended.

What is even more baffling is the test used by police to identify and distinguish a suspected prostitute from one who is not. Usually police rely on attire alone, but this test is unfair and irrational because many a time it has led to many innocent females being arrested, detained and at times convicted unfairly.

This law is not only unreasonable and discriminatory against the fairer sex but is clearly unconstitutional and contrary to the spirit of gender equality existing in contemporary democracies.

It is in the public interest that it be repealed forthwith to avoid any further violation of women’s constitutional rights.

Many women have been deprived their liberty and have had their right to equal protection before the law violated by this superfluous and gender-insensitive section.

Although the police are empowered to release offenders for minor offences on notice to appear in court, most members are unwilling to do so.

Because of an obsession to detain, perhaps instigated more by sadism and cynicism, the police have turned a blind eye to respecting people’s freedoms. It is high time our police re-examined itself and adopted a firm commitment to respect and protection of human rights.

An undisciplined force without integrity that wantonly violates people’s constitutional rights drives citizens to acts of vengeance, anarchy and in the long-term alienates itself from the people it is supposed to serve.

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