CONSTITUTION WATCH 11-2015

CONSTITUTION WATCH 11/2015

[22nd June 2015]

Constitution Section 210

Independent Mechanism for Complaints against Security Services

Introduction

In probably every country in the world, there are complaints about the way in which police officers and members of the Defence Forces and other security services conduct themselves.  Inevitably most of these complaints are directed against the Police, because police officers come into contact with a wider section of the public than Defence Force and other security service personnel do.

These complaints must be properly investigated because the Police and the Defence Forces and other security services are the coercive arms of the State:  that is to say, they are the forces the Government uses to ensure that laws are obeyed and order is maintained.  The conduct of their members must be kept in check, therefore, because if they exceed their legitimate powers the country will degenerate into an authoritarian police state.  It must be recognised, moreover, that some of these complaints, particularly those against the Police, may be fabricated and that it is easy to fabricate them.  In criminal trials, for example, accused persons often try to explain away confessions or admissions by alleging they were forced to confess through police brutality.

So it is important for the complaints to be investigated:

- not only to keep the members of the Police, Defence Forces and other security services in check,

- but also to protect their reputation.

Section 210 of the Constitution

Section 210 of the Constitution provides for the investigation of complaints against the security services [i.e. the Police Service, the Defence Forces, the State intelligence services and the Prisons and Correctional Service].  The section reads as follows:

210  Independent complaints mechanism

An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

What is “misconduct” on the part of security services?

Section 206 of the Constitution spells out the conduct expected of members of the security services:

they must act in accordance with the Constitution and the law.

they must not:

act in a partisan manner

further the interests of any political party or cause

prejudice the lawful interests of any political party or cause

violate the fundamental rights or freedoms of any person.

they must not be active members or office-bearers of any political party or organisation.

Any conduct in breach of this short code necessarily constitutes misconduct.

Government Responsibility to Comply with Section 210

The obligation imposed by section 210 – “An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”… ” – may seem somewhat nebulous. 

But section 2(2) of the Constitution makes it clear where responsibility lies:

“(2)  The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.” [Veritas underlining]

Responsibility for creating an Act of Parliament lies with the national executive and legislative institutions – the Government and Parliament.  Government takes the necessary Bill to Parliament, Parliament passes it, and the President assents to it before gazetting it as an Act.  The Government must therefore ensure that a Bill for the Act of Parliament envisaged by section 210 of the Constitution is drafted and presented to Parliament.

What Has the Government Done to Comply with Section 210?

The Government has not come up with a Bill to establish an effective and independent complaints mechanism.  Such a Bill has not been mentioned in any of the statements made by Ministers and officials about the Government’s exercise to align our law with the Constitution.

Such a Bill is absolutely necessary, because:

Current legislation does not comply with section 210 of the Constitution.  There is no provision, whether in the Police Act, the Defence Act, the Prisons Act or any other Act, for setting up an independent mechanism to receive and deal with complaints about the conduct of the security services.  Section 55 of the Police Act gives the Police Service Commission power to conduct an enquiry or investigation into the practices of the Police Force, but the section would not allow the Commission to investigate individual complaints.

There seems to be a growing hostility between the public and the police.

Zimbabwe’s history – particularly its recent history – is replete with reports of alleged misconduct by police, military personnel, prison officers and CIO agents which have been either ignored or not brought to satisfactory closure – i.e. by either exoneration or by effective action.

Citizens need to have confidence in the security services.

The reputation of the security services and indeed of the whole country would be enhanced by such a complaints mechanism.

And, of course, the Constitution says that an Act must be promulgated, and the Constitution must be taken seriously.

Need for an Independent Body

The Constitution recognises the need that the mechanism dealing with security service complaints must be independent, [just in the manner that it entrusts other public “watchdog” functions to independent commissions such as the Zimbabwe Election Commission and Anti-Corruption Commission, etc.]  It is not enough for a law to provide for the internal disciplining of security service members who are accused of misconduct, or even to provide for them to be dealt with by the criminal courts.  Unless the investigation of complaints is done by an independent body there is likely to be little public confidence that such complaints are dealt with fully and impartially.

Examples from Other Countries

Other countries have set up independent bodies to investigate complaints about the conduct of security services, particularly the police.

In South Africa, where like Zimbabwe the constitution obliges the government to set up such a body, the legislature passed the Independent Police Investigative Directorate Act of 2011.  The Act creates an Independent Police Investigative Directorate tasked to investigate all deaths arising from police action or occurring in police custody, as well as alleged or suspected acts of brutality, criminality, corruption and misconduct on the part of members of the South African Police Service.  The Directorate functions independently of the police service and is headed by a Director appointed by the Minister of Police with the approval of a parliamentary committee.  Its investigators have the same powers as police officers to arrest and question people and to conduct searches to unearth misconduct.

The United Kingdom, India and some Australian states have independent bodies with similar functions.  In Botswana complaints against the police are investigated by a statutory Police Council, and they can also be dealt with by that country’s Ombudsman.  In Mauritius complaints are dealt with by a Police Complaints Investigation Bureau, though investigations by the bureau can be monitored by members of the country’s police force.  In Nigeria there is elaborate provision for police oversight, beginning with a Police Council headed by the President.

Conclusion

It is important that Section 210 of the Constitution be implemented both to protect the public and to enhance the image of the security services.

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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