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New anti-corruption legislation "unconstitutional"
June 25, 2004
- New anti-corruption legislation, effective from this week, which
formalises regulations allowing Zimbabwean police to hold suspects
accused of economic crimes for up to four weeks without bail is
"unconstitutional", human rights activists alleged on Friday.
The Criminal Procedure and Evidence Amendment Bill went through
parliament this week, despite opposition from some ruling ZANU-PF
MPs. President Robert Mugabe had already used his extraordinary
powers to decree the provisions of the bill in February.
The amendment enables the police to detain people suspected of committing
economic crimes, including corruption, money laundering and illegal
dealing in foreign exchange and gold, for up to a week. The police
can also hold suspects for a further 21 days if prima facie evidence
of their involvement is produced, without giving them the option
of applying for bail or paying a fine.
"The legislation violates the Bill of Rights enshrined in the Zimbabwean
constitution. Even the parliamentary legal committee had given an
adverse report on the legislation, despite which it has gone through
parliament," said John Makumbe, a political science lecturer at
the University of Zimbabwe and chairman of Transparency International
The regulations were introduced as part of Mugabe's attempts to
clamp down on corruption after a senior ZANU-PF central committee
member, James Makamba, was arrested in February. Makamba, the chairman
of Telecel, Zimbabwe's third largest cellular telephone company,
last week pleaded guilty to six counts of illegally dealing in foreign
currency in his trial at the Harare magistrate's court.
ZANU-PF MP for Chinhoyi, Phillip Chiyangwa, and Jane Mutasa, another
Telecel director, have also been arrested on charges of sabotaging
Zimbabwe's attorney-general, Bharat Patel, denied that the new legislation
was "unconstitutional", and said it was to be used in "specific
cases", the merits of which would be assessed by at least two authorities:
the court and his office. "The courts have the right to apply their
minds" to decide whether the police have the grounds to continue
the detention of the suspect, as does the attorney-general to ensure
that there is no abuse of powers by the police.
"The legislation is still being hotly debated - and rightly so -
for the inclusion of more safeguards," Patel told IRIN.
"Corruption cannot be fought in isolation, without the protection
of the rights of individuals, especially fundamental rights such
as the presumption of innocence, which is the supporting tenet of
our criminal justice delivery system," said Otto Saki, a projects
lawyer with Zimbabwe Lawyers for Human Rights.
"You don't have to be a lawyer to ascertain that the regulations
are patently and overtly unconstitutional. Section 13(1)(e) of the
Constitution of Zimbabwe provides that one may be deprived of the
right to liberty upon reasonable suspicion of having committed,
or being about to commit, a criminal offence. However, there must
be prima facie grounds for arresting that person," he said.
According to Saki, the legislation legalises the "heretical theory"
of "arrest first and investigate later", which he alleged had already
become characteristic of the police.
He argued that the legislation would make room for more corruption.
"The police have effectively been given wide powers to arrest without
reasonable suspicion and to detain suspects in custody until they
have completed their investigations," Saki said.
"The police will effectively be the arresting detail; the prosecution
will be rendered useless; the magistrate and the judge will not
have a say in the bail application; the accused, to buy his freedom,
will have to bribe his way out."
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