CONSTITUTION WATCH 14-2015

CONSTITUTION WATCH 14/2015

[15th July 2015]

Aligning Laws with the Constitution

The Criminal Procedure and Evidence Amendment Bill (Part 1)

Introduction

Veritas has repeatedly called for the Criminal Procedure and Evidence Act — the statute which lays down the procedure to be followed in criminal trials — to be aligned to the Constitution so that accused persons are accorded their constitutional rights.  Criminal trials conducted under the Act in its unaligned state are liable to be set aside on appeal or review on the ground that they infringe the Constitution.

The Criminal Procedure and Evidence Amendment Bill, hereafter referred to as the Bill [available at address below] was finally gazetted on 3rd April this year and was presented in Parliament and referred to the Parliamentary Legal Committee on 12th May.  The Bill not only tries to bring the Criminal Procedure and Evidence Act [the Act] into line with the Constitution;  it also contains new provisions affecting the powers of the Police, the gathering of evidence, the imposition of sentences in criminal cases and, generally, the trying to improve the operation of the criminal justice system.  In Part 1 of this analysis of the Bill, it will be assessed for effectiveness in aligning the Act with the new Constitution, and some of its other new provisions critiqued.  Part 2 will look at the Bill’s important sins of omission.

Power of Prosecution

The Bill will replace Part II of the Act, which deals with the power of the State [now the Prosecutor-General and the National Prosecuting Authority] to prosecute criminal cases.  The new Part is generally satisfactory, though:

The Bill is not altogether clear to whom the Prosecutor-General can delegate his or her functions.  The Law Society’s draft included a provision against the Prosecutor-General delegating functions to police officers and other members of the security services.  Serving members of the security services are prohibited by section 208(4) of the Constitution from being employed in civilian institutions, except during states of public emergency.  There is nothing to this effect in the Bill.

The new Part II states that there shall be a National Director of Public Prosecutions.  But the Bill but does say what National Director of Public Prosecutions will or can do.

The new Part II leaves intact the existing provision which prevents courts from punishing people for contempt of court committed outside a courtroom.  Only the Prosecutor-General can institute proceedings against such people.  [The section was originally enacted to prevent the High Court from taking action against the present Minister of Finance after he had criticised a decision of that court.]  This is an undue limitation on the powers of the courts to protect their reputation.

Private Prosecutions

Section 16 of the Act as it is states that no private person can institute a prosecution unless the Prosecutor-General has issued a certificate to the effect that he — the Prosecutor-General — declines to prosecute the case.  The Bill will amend this section 16 to give the Prosecutor-General a complete discretion whether or not to issue such a certificate and to prevent companies and other bodies corporate from instituting private prosecutions.  This will nullify a decision of the Constitutional Court, which held that the Prosecutor-General had to issue such a certificate so long as the private prosecutor could show a real interest in bring a prosecution, and that companies were entitled to institute private prosecutions.  It is most undesirable for the Bill to seek to overturn a decision of the Constitutional CourtFurthermore, abolishing the right of companies to institute private prosecutions effectively denies them access to a court, which is a right guaranteed by section 69(3) of the Constitution.  For that reason, the amendment is unconstitutional.

Police Powers

Power to detain people without arresting them

Clause 12 of the Bill will insert a section in the Act giving police officers, in the exercise of their “socially protective function”, a power to apprehend people who are found drunk or apparently mentally disordered and to detain them for up to 24 hours before releasing them without charge.  This clause, though probably well intentioned, may cause unease to human-rights defenders: 

It is not clear what “socially protective function” the Police have, apart from combating crime.  Some clarification would be welcome.

The Police already have power to arrest persons who are found drunk in public [section 116(1)(k) of the Liquor Act] or who, whether drunk or not, refuse to leave land or premises when asked by the occupier to do so [section 132 of the Criminal Law Code].  And they have adequate powers under the Mental Health Act to apprehend mentally disordered people and get them treated in a health institution.  So it is not clear what real purpose the new provision will serve.

Furthermore, the main function of the Police is to enforce the law.  Drunkenness in public is a crime under the law, and people who break the law should be arrested and charged according to law rather than detained administratively.

The clause adds an undesirable provision to the effect that any confession or incriminating statement made by a person who goes voluntarily to a police station will be admissible in evidence against him or her.  This implies that even if the person is tricked or forced to make the confession or statement it will be admissible, so long as he or she went to the police station voluntarily.

Power of arrest:  rights of arrested persons

Under section 50(1) of the Constitution, anyone who is arrested must be told of the reason for the arrest, of their right to remain silent and of their right to contact a relative, lawyer or other source of help.  The Bill will insert a new Tenth Schedule in the Act setting out a form of words to guide police officers in explaining their rights to arrested persons.  This will give much needed guidance to the police.

The Bill will also insert a new section 385A into the Act permitting, at the State’s expense, arrested persons to contact their relatives, advisers and other sources of help, in accordance with section 50(1)(b) of the Constitution.  

Also under the new section officials responsible for detaining arrested persons will be obliged to tell their relatives, advisers and other interested parties if they make an enquiry, where and why those persons are being held.  Unfortunately this new obligation is imposed only on the officials who are holding the arrested persons, so a lawyer who wants to find out where his or her client is being held will have to search unaided until he or she locates the right place, and only then will he or she find officials who are obliged to reveal that the client is indeed being held at that place – but only if those officials are asked about the arrested persons.  It would have been better if the Bill imposed a more general obligation — for example, on senior police officers at a central point — to reveal the whereabouts of detained persons;  the Bill should also have obliged the Police to keep accurate records of the whereabouts of all arrested and detained persons, which could be examined by lawyers and other interested persons.

Power of arrest:  warrants of arrest

The Bill will amend section 33 of the Act so as to prohibit justices of the peace who are police officers from issuing warrants of arrest.  This is a welcome amendment because it will prevent one police officer from issuing a warrant for a sister or brother police officer.  The clause does not go further, however, and require persons who issue warrants to have a reasonable suspicion that the person named in the warrant is guilty of an offence;  under the section at present, they need merely be told by the person applying for the warrant that he or she has a reasonable suspicion.  This is unconstitutional.

Power of arrest:  use of force

The Bill will replace section 41 of the Act with a new section clarifying the circumstances in which the Police and others may use force in order to arrest people.  The new section will say that “for the avoidance of doubt” the use of lethal force — i.e. force that kills a person — is legal only in certain circumstances, i.e. if the force is necessary to defend someone, or if there is a substantial risk that the person to be arrested will escape and cause death or serious injury to someone, or if the person to be arrested is likely to cause grievous bodily harm.

Under section 86(3) of the Constitution the right to life is sacrosanct.  No law may limit it.  The law cannot allow the killing of a human being in any circumstances whatever except in execution of a death sentence lawfully imposed by a court.  However difficult it may be for police officers who have to arrest violent criminals, that is the law and they must obey it.  The new section is unconstitutional.

Power to take tissue samples

A new section 41B will be inserted which will give health practitioners, at the request of the Police, the power to take bodily samples — e.g. DNA samples — not only from suspects [which is permissible under the Act at present] but also from groups of people some of whose members are suspected of having committed a crime, and even from people who are not suspects at all but whose bodily tissues need to be tested in order to eliminate them from suspicion or to incriminate someone else.  If a person refuses to have a bodily sample taken from him or her, the Police will have to get a warrant from a judge or magistrate.  The new section omits to say what can be done under a warrant — i.e. that a health practitioner can take samples from the person concerned without consent — and that omission should be rectified.

The new section is probably constitutional.  Although the Constitution declares that no one should be subjected to “the extraction or use of their bodily tissue without their informed consent” [section 52(c)], our courts will probably regard the new section as a justifiable exception to that right in terms of section 86 of the Constitution, which allows constitutional rights to be limited so long as the limits are “fair, reasonable, necessary and justifiable in a democratic society”.  DNA samples are an important modern tool in crime detection although at present the Police budget may not run to the expense of DNA testing.

Power of search and seizure

In regard to the powers of the Police to search for and seize articles that constitute evidence or that have been used to commit crimes, the Bill will make several changes:

Section 50 of the Act will be amended to prevent police officers who are justices of the peace from issuing search warrants.  As with warrants of arrest, this will prevent the Police issuing warrants “in-house”.

Police officers who conduct searches without a warrant, or enter premises to interrogate suspects and witnesses, will have to disclose their identities to interested parties;  if they do not, they will commit a criminal offence [clauses 19 and 21].  This, one hopes, will make them more careful to act within their powers.

Police officers who seize articles from arrested persons or from premises they have searched will have to issue full receipts for the articles that are taken — and if they do not do so they will commit a criminal offence [clause 17 of the Bill].  This will make police officers more accountable.

The power of police officers to stop and search people at night will be restricted so that the officers will be allowed to search only persons whom they reasonably suspect are carrying goods illegally [clause 20 of the Bill].  Arbitrary searches, in other words, will no longer be permitted.

The Bill will make provisions of the Act dealing with the disposal of seized articles more elaborate so as to increase transparency and reduce corruption.

Bail

In terms of section 50(1)(d) of the Constitution, anyone who is arrested must be released unconditionally or on reasonable conditions, i.e. on bail,  “unless there are compelling reasons justifying their continued detention”. The Bill purports to amend the Act in compliance with this constitutional provision, but it signally fails to do so:

It defines “compelling reasons” so as to cover all the grounds which currently may justify a court in refusing bail [see clause 2]Not all these grounds are “compelling” as required by the Constitution.

In clause 29 the Bill requires an arrested person who is charged with certain serious crimes to satisfy the court that there are compelling reasons for his or her release, whereas it is clear from the Constitution that the prosecution should establish compelling reasons for detaining the person.  Shifting the onus of proof is unconstitutional.

Furthermore, the Bill does not touch sections 32(3a) and (3) and 34(4) of the Act, which prohibit a court from granting bail for 21 days to persons who have been arrested for serious offences. These sections are manifestly unconstitutional and should have been repealed.

Note: the Bill does not alter the State’s power to suspend granting bail pending the State’s appeal [see Part II].

Sentence

Sentencing guidelines

The Bill inserts a new section 334A in the Act, providing for the convening of judicial conferences to discuss principles and objectives of sentencing criminals and to lay down guidelines to be followed by courts when imposing sentence.  The conferences will be convened by the Judicial Service Commission and will bring together representatives of the judiciary, magistrates, prosecutors, Police, Prisons and the Law Society.  Sentencing guidelines will be subject to approval by the Minister of Justice, who will publish them in the form of regulations if he or she approves them.  Courts will not be absolutely bound to follow the guidelines in all cases but will generally be expected to abide by them.

Death penalty

The Bill will amend the provisions of the Act relating to the death penalty in order to bring them into conformity with the Constitution.  This, as pointed out in Bill Watch 10/2015 of the 5th June, 2015, will have the effect of reintroducing the death penalty into Zimbabwe.

To be Continued

In Part II of our examination of the Bill, we shall set out the provisions of the Act which should be amended by the Bill but which the Bill will leave unchanged.

 

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