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Magistrate's
industrial action no excuse for over detention
Zimbabwe Lawyers for Human Rights (ZLHR)
April 07, 2011
Following the
strike action by Magistrates across the country Zimbabwe Lawyers
for Human Rights (ZLHR) is concerned by the large numbers of persons
being over detained in police custody and not being taken before
any court of law for initial remand and the opportunity to be granted
bail.
What is most
worrying are reports that the Zimbabwe Republic Police (ZRP) and
the Ministry of Justice and Legal Affairs are proceeding on the
dangerous misconception that accused persons can be lodged in remand
prisons without the right to be brought before a Magistrate, or
Judge, to be placed on remand and apply for bail. In the Herald
edition of 7 April 2011, the Minister of Justice and Legal Affairs,
Patrick Chinamasa, is said to have directed that there was an option
of taking suspects to facilities such as Chikurubi, to "off
load some of them there". Meanwhile the Financial Gazette
of April 7 - 13, 2011, reported ZRP spokesperson Wayne Bvudzijena
stating that all persons in police custody will be detained until
the Magistrates' industrial action comes to an end and that
the police can simply resort to warrants for further detention.
Zimbabwe's
Criminal
Procedure and Evidence Act [Chapter 9:07], Section 32 (2) provides
that:
"a person
arrested without warrant shall as soon as possible be brought
to a police station or charge office and, if not released by reason
that no charge is to be brought against him, may be detained for
a period not exceeding forty-eight hours unless he is brought
before a judge or magistrate upon a charge of any offence and
his further detention is ordered by that judge or magistrate or
a warrant for his further detention is obtained . . . ."
This means that
no person, following their arrest, can be detained in police custody
beyond 48 hours without being taken before a Judge or Magistrate.
Only the Judge or Magistrate can then direct the further detention,
on remand, of that accused person. Further, a person can only continue
to be detained beyond 48 hours where warrants for their further
detention have been granted by a Judge, a Magistrate or justice
of the peace. Effectively it is no excuse to detain persons beyond
48 hours on the simple grounds that there are no Magistrates due
to their ongoing strike. Our laws allow for such accused persons
to be taken before any Judge, thus before the High Court of Zimbabwe
to argue for their liberty as guaranteed in the Constitution
of Zimbabwe.
The ZRP cannot
and should not abuse the process of obtaining warrants for further
detention. This procedure should be used sparingly and only in cases
where police have credible evidence and reasons related to the case
being investigated. More so, warrants for further detention must
not be arbitrarily used, on the basis that Magistrates are unavailable,
when in fact there is an option to present accused persons before
Judges. Further, the Zimbabwe Prison Services have no authority
to detain accused persons in remand prisons unless they have been
presented before a Magistrate or Judge and such Magistrate or Judge
has issued a warrant for their remand in custody pending trial.
ZLHR calls for
the following immediate action:
- That the
ZRP must comply with the provisions of the CPEA by either producing
detainees before a High Court Judge in the absence of a Magistrate
for an initial remand hearing within the prescribed 48 hour period,
or alternatively release the detainee;
- That the
Zimbabwe Prison Service should refuse to accept detainees for
incarceration in remand prisons without a valid warrant for imprisonment
issue by either a Magistrate or a Judge;
- That the
Minister of Justice and Legal Affairs and the ZRP must desist
from misleading the public into believing that detainees can simply
be imprisoned without due process of the law.
Visit the ZLHR
fact
sheet
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