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Rights of journalists when arrested
prepared by Tawanda Hondora for Media Institute of Southern Africa - Zimbabwe Chapter (MISA-Zimbabwe)
November 2002

The Police
The organisation primarily tasked with maintaining law and order, and therefore empowered to effect arrests is the police. The Police Act regulates operations of the police, which fall under the Ministry of Home Affairs. The police are empowered to arrest persons for the commission of both common and statutory law offences.

Statutory offences are those offences codified in statutes, such as traffic offences, or the offences that are contained in AIPPA or POSA. On the other hand, common law offences are not codified into statutes, but form part of the unwritten law, relating to offences commonly accepted in most societies as reprehensible conduct, such as the offence of murder, theft, arson, malicious injury to property, kidnapping, assault, and so on. There are instances, however, where common law offences have been modified by statute, in which case the offence becomes a statutory violation. This distinction is important, because, any person, including members of the dreaded CIO, may effect a citizen’s arrest on any person caught committing a common law offence. No person other than a police officer is entitled to effect an arrest for the commission of a statutory offence, unless if the arrest is expressly permitted by statute. Any such arrest would amount to unlawful detention, entitling the person affected a right to release, through a writ of harbeous corpus. Submitting to arrest by a person that is not a police officer in cases where the charge is one relating to a statutory offence becomes a matter of personal choice and practicality.

Every police officer is issued with a badge, which has an identification number and an identification card. Before submitting to questioning or arrest by any person claiming to be a law enforcement officer, journalists must:

1. Demand to know the full name of the person(s);
2. Request an identification badge and police identification card;

Journalists should refuse to be questioned or arrested by a member of the CIO, unless if they wish to speak to the person concerned, but this should preferably be in the presence of a lawyer.

An arrest by a member of the CIO, for a statutory offence is not lawful, and amounts to illegal detention. When reporting in the media, it is important therefore to accurately describe the denial of liberty as unlawful detention and not an arrest. A person that has been unlawfully detained is entitled to immediate release, if an appropriate application is made to the High Court.

In order to deter such common and deplorable behaviour, members of the CIO must be sued for damages for unlawful detention, and in particular, special punitive damages as well as costs must be sought.³

Reasonable Suspicion
The ability to arrest individuals by the police is restricted. No arrest should be made unless if the arresting police officer has a reasonable suspicion that an offence has been committed. In other words, there must be in existence sufficiently reasonable facts or basis for suspecting that an offence has been committed or is about to be committed.

There have been worrying instances of the arresting officers stating (in court of all places) that they were merely sent to arrest an individual, and they themselves were not aware of the precise reason for the arrest, and had not satisfied themselves that there was in existence a reasonable suspicion of an offence having been committed.⁴

Though in practice it seldom happens that arresting police officers will listen to protestations, and enquiries about whether they believe that an offence has been committed, journalists should be more assertive. The benefit arising from such assertiveness is that either the arrest will not be carried out, or damages for unlawful detention will be increased on the basis of the facts of the matter.

48 Hour Moratorium
The police are entitled to arrest and detain an individual, on the basis of a reasonable suspicion that an offence has been committed, for a maximum of 48 hours, after which they are obliged to refer the matter to the Magistrate court for initial remand, or to release the arrested person. Any detention beyond the stipulated time frame automatically amounts to unlawful detention, unless if the police successfully apply to a magistrate for a warrant of further detention. Detentions past the permissible 48 hours should result in lawsuits against the police. This will hopefully discourage unlawful conduct from the police.

Pre-trial detention is in principle intended to ensure that the accused person attends court. Arrest and detention for the sake of investigation and forming a suspicion and building a case against an individual is unlawful. Again, this prevalent behaviour needs to be checked by more suits being brought against the police individually and the Minister of Home Affairs.

In addition to buying a copy of the Criminal procedure and Evidence Act, all journalists must in addition familiarise themselves with section 18 of the Constitution. This is the section that lists the rights of all persons accused of committing a criminal offence.

4 The arrest and detention of the Law Society of Zimbabwe President, and Secretary, Mr. Moyo and Mapombere in July 2002, is an example. The police officer in charge of the arrest stated in court that he was not aware of the full and precise reasons for the arrest. Efforts to get the officer who gave the orders were not fruitful. And in an unimaginable judgment, the court in these instances ruled that the arrest and detention was lawful. This was notwithstanding that the charge was also defective as it quoted a non-existent section of POSA. Not that the decision did much for the judiciary's already battered image.

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