Breathing life into the Constitution
One of the many claims made by President Emmerson Mnangagwa and his administration back in 2017 was that the rights and liberties in the Constitution would be respected and championed. Looking at the reality, however, it seems that this was nothing more than pie in the sky. One of the defining traits of the current administration seems to be a penchant for mass and arbitrary arrests. In this piece, I want to explore what the Constitution says in respect of arrests.
One of the misconceptions many people have about arrests is that once one commits a crime or is suspected to have committed a crime, then an arrest must follow. That is not necessarily so. Zimbabwe, like many other jurisdictions, recognises that an arrest is one of the most severe restrictions on one’s liberties and, therefore, has very limited instances where an arrest should be used (at least in theory). Arrests should ideally be used to secure the attendance of an accused in court. Arrests should not be used to intimidate, frighten or harass individuals.
Our constitutional order is clear on the use of arrests, but this has not translated into a lived reality. The paradigm shift in legislative enactments can, for instance, be seen with arrests for breach of contracts. Previously, one could be arrested for failure to fulfil contractual obligations or a breach of contract, but section 49 of the Constitution spells out quite clearly that this cannot be the sole basis of imprisonment.
The Constitution accords every person the right to personal liberty in s49. The right in s49 includes two very important rights: The right not to be detained without trial and the right not to be deprived of one’s liberty arbitrarily or without just cause. Arbitrary arrests or arrests without just cause are, therefore, unconstitutional and thus unlawful. Put differently, the ordinary course of things is that all of us are entitled to move freely and to enjoy our liberty, but the State may, only after showing or establishing just cause, interfere with that right to liberty by using arrests and even then, this is not an indefinite interference determined by the police alone. This means among other things, that mass arrests are extremely problematic as was the case during the protests held earlier in the year, which resulted in mass arrests.
The police cannot round up and arrest a group of people merely because they are in the vicinity of an alleged crime nor can they arrest and detain people on the mere basis that they happen to be members of the same party or some other commonly held association with other suspects. Those kinds of crackdowns are unconstitutional on the basis of arbitrariness. There must be a rational basis to arrest and detain suspects to avoid violating this requirement. The onus of proving a just cause for arrests rests on the arresting officer as the Supreme Court held in Stambolie v Commissioner of Police (1989). Each arrest must be with just cause
An arrest is, therefore, an exception rather than a norm, in our constitutional order. This brings Zimbabwean law in line with international standards, where suspects can be interviewed or interrogated without first being arrested unless there are compelling reasons to do so. Unfortunately, the policing culture is to arrest to ask questions and build a case instead of the reverse. An arrest performs a very important function that should not be abused, because it interferes with the most personal of rights.
An arrest should always be an act of last resort, because of the intrusion of personal liberty. Where there is an improper arrest on the basis that it was either arbitrary or without just cause, the arrested individual has a constitutional claim to compensation in term of section 50 of the Constitution.
It is quite worrying, however, that the “new dispensation” has seen a number of arrests on flimsy grounds, with 90% of these charges not sticking. The number of these arrests are, indeed, worrisome, but point to an abuse of laws and processes.
In these cases, an arrest doesn’t seem to serve the purpose of securing the attendance of court by the accused, but proving a point and intimidating or harassing the arrested. If one were to compare the number of arrests made in terms of the dubious “subversion of a constitutional government” charge under former President Robert Mugabe and the current President, it would become apparent that Mnangagwa is easily surpassing his predecessor on the use of the charges.
The use of arrests to silence critics is something synonymous with the previous administration, but unfortunately, it seems to be a tactic that this present administration will also have as a legacy. If Mnangagwa is serious about distinguishing himself from his predecessor, then he needs to ensure that the criminalisation of dissent is discarded, and the criminal system is used for non-political and bona fide reasons.
Interestingly, we have seen more arrests of a political nature than we have of corrupt government officials, which was another promise of the current government. There seems to be more of a clampdown against perceived and actual dissent than there is of corruption. It is important that the government remembers that arrests are not to be used to settle scores or silence those it disagrees with, but also that it has a mandate to safeguard constitutional rights such as liberty.
If Zimbabwe wants to be seen as a functional democracy, then government and its arms need to focus on breathing life into our Constitution, lest it becomes a meaningless enactment that looks great on paper, but without practical application.
Let me conclude with something from John Milton, who aptly said “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. I hope the current administration can allow us to argue freely according to conscience, and without the fear of arbitrary arrests … just saying!
Paul Kaseke is a legal adviser, commentator, policy analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He writes in his personal capacity. You can give him feedback via email: firstname.lastname@example.org or follow him on Twitter @paulkasekesnr