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effect to the new Constitution: criminal proceedings - Constitution
September 24, 2013
to the New Constitution:
Watches outlined legislative changes needed to give effect to the
new Constitution, starting with those that should have been in place
when the new Constitution came into effect. In this Constitution
Watch we shall deal in more detail with amendments to Acts such
as the Criminal Procedure
and Evidence Act [the CP&E Act] to ensure that suspects
and accused persons, i.e. defendants, in criminal proceedings are
accorded the rights to which they are entitled under sections 50
and 70 of the new Constitution.
have been entitled to these rights ever since the Declaration of
Rights in the new Constitution came into force on 22nd May, but
they are not yet reflected in the CP&E Act, which regulates
the way in which criminal proceedings must be conducted. Until the
Act is amended, criminal trials conducted in accordance with its
provisions are liable to be set aside on review or appeal on the
ground that the accused persons were denied their fundamental rights
guaranteed by the new Constitution.
Section 50 of
the new Constitution gives people who have been arrested a number
of important rights which are not reflected in the CP&E Act.
These rights are:
(a) Right to
contact relatives, advisers, etc.
Under section 50(1)(b), arrested persons must be allowed without
delay to contact a spouse, relative or lawyer and to consult privately
with their lawyer or doctor. The CP&E Act grants no such right.
(b) Right to
Anyone who is detained following arrest has the right under section
50(5)(c) to be visited by their relatives, their lawyer, their doctor,
their religious counsellor and “anyone else of their choice”.
Again, the CP&E Act does not grant such a right.
(c) Right to
Under section 50(4) arrested and detained people have the right
to remain silent and not to be compelled to make a confession or
admission. At present, the CP&E Act, while not condoning the
extraction of confessions by force, allows a court to draw adverse
inferences from an arrested person’s failure to disclose facts
when being questioned by police officers; the failure can be treated
as corroborating the prosecution evidence given at the person’s
trial. Such inferences cannot be drawn now that an arrested person,
by remaining silent, is simply exercising his or her constitutional
(d) Right to
be informed of their rights
Arrested persons must be informed of their right to contact their
relatives and to consult their lawyers and doctors, as well as their
right to remain silent.
under section 50(1)(a), arrested persons must be told why they are
being arrested “at the time of arrest”; under section
32(5) of the CP&E Act, on the other hand, they need merely be
told “forthwith”, which means they can be told after
(e) Right to
release after 48 hours
Under section 50(2) and (3), arrested persons must be released within
48 hours after their arrest, unless they have been released earlier
or brought before a court. Although the CP&E Act also requires
them to be released after 48 hours, it allows their detention to
be extended if a justice of the peace, usually a senior police officer,
has ordered their further detention, or if the 48-hour period ends
on a Saturday, Sunday or public holiday. The Constitution permits
no such extension: the only way in which an arrested person can
be kept in custody for more than 48 hours is if a court orders the
person’s further detention.
persons have not been accorded any of the rights mentioned above,
their arrest and detention become illegal and they are entitled
to compensation from the government or the police officer who arrested
them [section 50(8) & (9) of the Constitution].
A further point
about arrests is that the old Constitution allowed the killing of
people who resisted arrest or tried to escape arrest, and section
42 of the CP&E Act declares such killing to be lawful. The new
Constitution contains no such provision, and in section 86(3) states
that the right to life cannot be limited. Section 42 of the CP&E
Act should be reconsidered and amended.
police handbook on human rights which instructs the police how to
treat pre-trial prisoners must be rewritten and reissued.
of the Constitution states that arrested persons “must be
released unconditionally or on reasonable conditions, pending a
charge or trial, unless there are compelling reasons justifying
their continued detention”. This means that in the absence
of “compelling reasons” they must be released on bail.
The wording of section 50(1)(d) is taken from section 49 of the
Kenyan Constitution; it confers a greater right to bail than the
South African Constitution does, which requires arrested persons
to be released on bail only “if the interests of justice permit”.
of the CP&E Act begins by giving awaiting-trial prisoners a
right to bail unless a court finds that it is in the interests of
justice for them to be detained in custody. The section goes on,
however, to spell out in detail and at considerable length when
it is in the interests of justice to keep people in custody and
what factors a court may take into account in deciding bail issues.
The section prohibits the grant of bail, save in exceptional circumstances,
to people charged with serious offences such as murder, rape, armed
robbery, indecent assault of children, treason, possession of dangerous
weapons and failing to report bandits, saboteurs or terrorists.
Section 32 of
the CP&E Act imposes further restrictions on the grant of bail.
People who have been arrested for an odd miscellany of crimes for
example bribery, money-laundering, illegal exporting of maize, theft
of motor vehicles or vehicle registration-plates, theft of cattle,
and forgery of identity documents must be kept in detention without
bail for up to 21 days after their first appearance in court if
the Attorney-General certifies that the crime they committed posed
significant potential prejudice to Zimbabwe’s national interests.
are now unconstitutional. The new Constitution has granted arrested
persons a right to bail in the absence of compelling reasons, and
an Act of Parliament cannot dictate what are and what are not “compelling
reasons”. It is for the court to decide in each particular
case whether there are compelling reasons which justify keeping
an arrested person in detention. The mere fact that a person has
been arrested for a particular crime, even murder, is not in itself
a compelling reason for denying him or her bail.
258 of the new Constitution, the right to prosecute criminal cases
on behalf of the State has been transferred from the Attorney-General
to a new National Prosecuting Authority [NPA] headed by a Prosecutor-General.
Under section 259(10) of the Constitution, an Act of Parliament
must provide for the appointment of a board to employ prosecutors;
the Act must also provide for their qualifications and conditions
of service and for the structure and organisation of the NPA. Until
such an Act is promulgated there can be no board to employ prosecutors,
and in the absence of such a board the right of former members of
the Attorney-General’s Office to conduct prosecutions is,
at the very least, open to question.
70(1)(e) and (f) of the new Constitution, accused persons, i.e.
defendants, in criminal trials must be assigned a lawyer at State
expense if substantial injustice would otherwise result, and must
be informed of this right.
The Legal Aid
Act is consistent with this, in that it allows accused persons to
be granted legal aid if they are “in need” of it or
“would benefit” from it or if it is “desirable
in the interests of justice” for them to have legal aid, but
there is no provision requiring anyone to inform accused persons
of their right to request legal aid. It would be desirable to include
the duty to inform accused persons of this right in an amended CP&E
Act and also to add this provision to the Legal Aid Act.
of the Constitution states that accused persons have the right to
“remain silent and not to testify or be compelled to give
self-incriminating evidence”. This is an extension of the
right to silence given to arrested persons under section 50.
Under the CP&E
Act accused persons can hardly be said to have a right to remain
silent. Before every criminal trial they must be “requested”
to outline their defence, and if they fail to do so, or if in their
outline they omit relevant facts, the trial court may draw adverse
inferences and treat the silence or the omission as evidence corroborating
the prosecution case against them. Even if accused persons do choose
to remain silent and not to give evidence, the CP&E Act allows
the prosecutor and the judge or magistrate to question them, and
if they maintain their silence in response to the questions or fail
to mention relevant facts, the court can once again draw adverse
which were authorised by the old Constitution, are now unconstitutional
in that they penalise accused persons for exercising their right
to silence. The CP&E Act must be amended to reflect the new
constitutional dispensation. The amendments should, however, recognise
that the right is not absolute, and that an accused person cannot
always escape conviction by remaining silent. If the prosecution
leads enough evidence to raise a presumption of guilt, then if the
accused person will be convicted unless he or she disproves that
not to be convicted of conduct which is no longer a crime
70(1)(l) of the new Constitution accused persons cannot be convicted
of conduct which has ceased to be criminal, which means that if
a person commits a crime and the crime is subsequently abolished
the person cannot then be prosecuted for the crime.
This is contrary
to the current position, enshrined in section 17 of the Interpretation
Act, that persons can be prosecuted for conduct which was criminal
when it was committed, even if the statute creating the crime has
since been repealed. The Interpretation Act will have to be amended
of illegally-obtained evidence
70(3) of the new Constitution evidence that has been obtained in
violation of the Declaration of Rights, e.g. through illegal searches
or monitoring of communications in violation of section 57, must
be excluded in criminal trials if allowing the evidence to be given
would render the trials unfair or would be detrimental to the administration
of justice or the public interest.
common-law position is directly the opposite of this: illegally-obtained
evidence is generally allowed in court, though evidence obtained
by torture is excluded and statements made by accused persons will
not be admitted in evidence unless the statements are proved to
have been made voluntarily.
the CP&E Act which reflect the common-law position will have
to be amended. For example, section 258(2) of the CP&E Act allows
the police to give evidence that an accused person pointed out something,
e.g. a murder weapon or where stolen property was hidden, even though
the accused was illegally induced, e.g. by threats, etc, to do so.
(a) The death
penalty - This is permitted under section 48 of the new Constitution,
but its application is restricted:
- It can be
imposed only for “murder committed in aggravating circumstances”
[whatever that means].
- A court
must have a discretion whether or not to impose it.
- It can be
imposed only on men between the ages of 21 and 70.
Act will have to be amended to give effect to these restrictions.
At present it clearly does not: under section 337(a) of CP&E
Act the death sentence is mandatory for murder, whether aggravated
or otherwise, unless the court finds there are extenuating circumstances;
and it may be imposed on men and women between the ages of 18 and
70. The Criminal Law
(Codification and Reform) Act will also need to be amended:
section 47 of that Act allows the death penalty to be imposed for
all types of murder, whatever the murderer’s sex, and there
is no upper age-limit for its imposition. It also allows people
to be sentenced to death for attempts, conspiracies and incitements
to commit murder.
punishment of male juveniles, i.e. the whipping of boys under the
age of 18. There is also a question-mark over this. In 1989 the
Supreme Court, by a 3-2 majority, held that such punishment was
inhuman and degrading and contravened section 15 of the old Constitution.
The government responded by amending section 15 of the old Constitution
to allow “moderate” juvenile corporal punishment to
be imposed. Section 53 of the new Constitution contains no such
provision allowing juvenile corporal punishment, so the provisions
of the CP&E Act providing for such punishment is unconstitutional.
of the new Constitution gives convicted persons the right, “subject
to reasonable restrictions prescribed by law”, to appeal to
a higher court against conviction and sentence.
In the light
of this, section 36 of the High Court Act and section 11 of the
Supreme Court Act are probably unconstitutional: the sections prohibit
convicted persons from conducting their appeals in person, i.e.
without a lawyer, unless a judge has certified that there are reasonable
grounds for appeal. Such a blanket restriction on the right of appeal
can hardly be described as reasonable, in view of the fact that
most people in Zimbabwe cannot afford to engage a lawyer.
of the amendments
As we pointed
out earlier, the amendments recommended in this Constitution Watch
should have been in place on the 22nd May, when the Declaration
of Rights in the new Constitution came into force. With every passing
day they become more urgent. Criminal proceedings conducted in accordance
with the unamended CP&E Act are liable to infringe the Constitutional
rights of people who have been arrested, detained and charged with
criminal offences; hence the proceedings may be set aside on technical
grounds and the government and its officers may be exposed to claims
for damages. At least two people have been sentenced to death since
the Declaration of Rights came into force. Their sentences would
have to be set aside because although they may have been properly
sentenced under the old law, the new law on the death penalty [see
above] is very different.
E Act is not the only urgent law reform that is needed. In the absence
of a National Prosecuting Authority Act the right of anyone to represent
the State in criminal proceedings is open to question and if a court
decided that people currently working as prosecutors are not entitled
to prosecute the proceedings would be a nullity.
Delay in effecting
the amendments is not only prejudicial to accused persons but is
also unfair to police officers, prosecutors and judicial officers
who, when trying to carry out their duties in accordance with the
law, unwittingly infringe the Constitution.
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