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Act of madness: Amendment of Criminal Procedure and Evidence Act
February 23, 2004
of corruption in Zimbabwe has suddenly taken a new dimension with the
gazetting of the Presidential Powers (Temporary Measures) Amendment of
Criminal Procedure and Evidence Act. The laws of the country have been
seen to be inadequate in as far as fighting economic crimes is concerned.
Admittedly corruption is a cancer that needs to be curtailed through lawful
means and needs the commitment of every citizen. Are we fighting corruption
if we are creating such highly inept laws such as the recently gazetted
37 of 2004? Corruption cannot be fought in isolation with 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. More so in view of our adversarial legal system.
The ‘Makamba Regulations’ seem to have been motivated by dictatorial tendencies,
which has been archetypal of laws that are a product of the Presidential
Powers (Temporary Measures) Act.
The introduction of
the Executive Presidency, gave our President sweeping powers to the extent
of becoming a lawmaker unto himself. Talk of the principle of separation
of powers! The act allows the President to pass legislation in the form
of regulations if it seems inexpedient for the laws to go through the
normal process of lawmaking. The President is empowered to pass regulations
by publishing them in the Government Gazette. These regulations are in
principle supposed to last for six months if they are not repealed. We
are talking of six months of remand holding cells being full to the brim,
police cells being crowded to the maximum, and more importantly rights
of presumably innocent citizens being violated candidly and with the blessings
of the courts which are presumed to be the custodians of our rights. One
cannot challenge these provisions in the lower courts, as they do not
have the jurisdiction to entertain constitutional matters. Lets try the
Supreme Court, after all the law is clear that the Supreme Court has original
jurisdiction in relation to violations of the Bill of Rights.
The act empowers the
President to pass regulations when it appears to the him (President) that
a situation has arisen or is likely to arise, which needs to be dealt
with urgently in the interests of among other things economic interests
of Zimbabwe or the general public interest. The issue of corruption, money
laundering, externalising of foreign currency is not a new phenomenon
to Zimbabwe and to claim that it has become of concern to the President
overnight is difficult to believe. The president is very much aware that
foreign currency has been externalised since time immemorial with the
express or implied sanction of the government and its obvious participation
in the very same schemes. To attempt to address the situation with such
heavy handedness that violates the fundamental rights of the people is
not only unfortunate but also deplorable. If the government is really
serious about fighting corruption then everyone in its hierarchies should
publicly declare all their investments and we will see if they will not
be found wanting (unotsvaga n’anga neinobata mai). This act which
empowers the President to make laws has been abused repeatedly especially
in matters relating to fundamental rights of citizens.
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 him having committed, or being about to commit a criminal offence.
There must be prima facie grounds of arresting that person. What
this piece of obnoxious legislation has done is to legalise the heretical
theory of "arrest and investigate later", which had already
become characteristic of the police save that it lacked statutory and
judicial sanction. To arrest someone is to deprive him of the right to
personal liberty without which many rights can be easily violated such
as subjection to cruel inhuman and degrading treatment. Every individual
should be afforded the right to protection before the law as provided
for under section 18 of the Bill of Rights of our Constitution.
The bad governance
style is responsible for the corruption that we are facing today in Zimbabwe.
It is only the authoritarian and despotic regimes that have been on record
of having high corruption rates in the world. In a country where the executive
has all the power to make law, to declare war or peace, to commit soldiers
in foreign wars, where a few individuals involved in diamond and gold
dealings only enjoy the profits of that war. Hundreds of soldiers were
declared missing under and their last known address was either the Commando
Barracks or King George VI Barracks. What ate those men? Corrupt tendencies,
In a situation of
normalcy, laws are never applied retrospectively but with the ‘Makamba
Regulations’, anything is possible. Every individual who is arrested on
allegations of having committed any offence is supposed to brought for
trial within a reasonable period and 7 days or 21 days will never fall
in the reasonable period regardless of who is the ‘reasonable man’. Reasonable
period does not only apply in respect of the commencement of trial but
also a reasonable time for its conduct and completion. With this regulation
this will only remain an academic argument, which has no practical application.
The right to appeal to any court of higher jurisdiction is available to
every individual who will be aggrieved by the decision of the lower court.
Bail applications and appeals will not be granted in circumstances were
the court feels that to grant one bail will jeopardise investigations
or one is likely to abscond. This decision will be reached after considering
the interest of all parties and the law is interpreted in favour of liberty.
To deny one bail on unfounded charges that might be even clear to the
court is unlawful and a total manifestation of a confused legal system.
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. 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. Another hybrid of corruption is being born from this low
attempt to deal with corruption.
To cite Professor
Kim in his book on Public Administration, commenting on corruption in
South Korea under President Jun’s administration wrote:
in the 5th Republic of Korea was similar to military dictatorship-abuse
of political and bureaucratic power. Military men were placed in charge
of the police, ruling party, the intelligence network and planning.
Hundreds of retired army officers were given political and administrative
positions such as ambassadors, mayors and major positions in central
government. This indicates that there was a formal government and then
there was an "informal government" that really controlled
Every Zimbabwean is
called upon to reflect upon these statements in light of the recent laws
that have been enacted and the ruffling of the old-new cabinet’s feathers.
Other than violating our own supreme law of the land, the regulations
are repugnant to the Conventions that Zimbabwe ratified and accented.
I call upon all members
of the legal fraternity to register their displeasure of these provisions
and challenge the relevant ministry. These regulations speak volumes about
the short sightedness of the old-new cabinet. It is unfair to expect something
better from these men. Our rights and the rights of accused persons should
never be traded for empty and mentally warped political agendas. We encourage
the government of Zimbabwe to fight corruption whilst respecting the rights
of its citizens regardless of the extent of the ‘grand evidence’ they
have or do not have against the accused.
is a Projects Lawyer with the Zimbabwe Lawyers For Human Rights
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