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The Newly-Promulgated Presidential Powers (Temporary Measures)(Amendment Of Criminal Procedure & Evidence Act) Regulations 2004
Trustees of Legal Resources Foundation (LRF)
February 18, 2004

The Trustees of the Legal Resources Foundation (LRF) wish to express their deep concern at the recently-promulgated Presidential Powers (Temporary Measures)(Amendment of the Criminal Procedure & Evidence Act) Regulations, Statutory Instrument 37 of 2004. The LRF is convinced that the regulations are unjustified and legally improper in a number of respects, some of which are as follows:

Firstly, the promulgation of the regulations through Presidential powers is in clear breach of the universally-accepted and well-established doctrine of separation of powers. The LRF notes with serious concern the assumption of legislative powers by the Executive, and the amendment of an act of Parliament by Presidential decree. The regulations have further breached this cardinal doctrine by excluding the jurisdiction of the court from determining the validity of any action taken by the Executive or state agents pursuant to the regulations. The repeated use of Presidential decrees when there is a duly-elected legislature is unjustifiable in a Parliamentary democracy.

Secondly, whilst cognizant of the need to take measures to curb the endemic and cancerous corruption and graft which have become rife for some time now in Zimbabwe, the LRF nevertheless feels that the regulations have gone too far, to the extent of taking away constitutionally-enshrined and protected rights. In particular, the conferment upon the state of the right to detain an accused person for 28 days without trial, instead of the standard 48 hours, amounts to a serious and unwarranted deprivation of the accused’s constitutional rights. The LRF does not accept that this is the only way to deal with and curb corruption in Zimbabwe, as other lawful and constitutional methods can be resorted to.

Thirdly, the LRF notes with concern the fact that the regulations are not confined to economic crimes. The regulations quite clearly include offences arising from violation of the Public Order & Security Act, a law which has been widely condemned both locally and internationally as repressive and a naked violation of people’s constitutional rights. In this regard, the LRF is dismayed by the highly misleading "Explanatory Note" in the regulations, which makes absolutely no reference to POSA and deceivingly claims that the regulations are intended to combat economic crimes. The LRF is worried that these regulations are yet another addition to the arsenal of repressive and unconstitutional laws which have found their way into the statute books over the past few years, and mark the beginning of a new regime of laws aimed at justifying and institutionalizing lengthy detention without trial into our legal system on a wider scale. More specifically, a person suspected or accused of committing the following offences under POSA is liable to be detained without trial for at least a month under the new regulations:

• Subverting constitutional government
• Insurgency, banditry, sabotage or terrorism
• Recruiting or training insurgents, bandits, saboteurs or terrorists
• Training as insurgent, bandit, saboteur or terrorist
• Supplying weaponry to insurgents, bandits, saboteurs or terrorists
• Possessing weaponry for insurgency, banditry, sabotage or terrorism and
• Harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist.

The LRF is further deeply disturbed by the fact that under the regulations persons can be detained for three weeks even if they did not actually commit any offence, or even if the offence is petty and minor. For instance, a person suspected or accused of buying or selling 5 rands on the streets becomes liable to be detained for a whole month. If there is a prima facie case against the person, the judge or magistrate has no power grant bail, and it shall be mandatory for the judge or magistrate to commit the suspect or accused to prison for a period of twenty-one days, in addition to the initial seven days.

The LRF is fully aware of the fact that in the past few years a large number of persons have been arrested by the Police and detained for all sorts of spurious and unfounded allegations, only to be released for lack of evidence. It is therefore reasonable to expect that, given the exclusion of court intervention imported by the regulations, such arrests and detentions will continue and even increase.

The LRF therefore wishes to call upon the Government to immediately repeal the repressive regulations and resort to conventional, constitutional, just and effective ways of dealing with suspects, and for Parliament to intervene and nullify the regulations.

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