CONSTITUTION WATCH 12/2016
[14th July 2016]
The Constitution and Complaints About Police
The Role of the Zimbabwe Human Rights Commission
Section 58 of the Constitution gives people the right to assemble together freely, and section 59 gives them the right to demonstrate, provided they do so peacefully. These rights are vital to any free democratic society, and they must be respected by the police and other law enforcement agents when they deal with public meetings and demonstrations that may become unruly.
So important are those rights that if members of the security services [i.e. the Police Service, the Defence Forces and intelligence agencies] use excessive force to control or break up demonstrations, even unruly or riotous ones, then they must be brought to book and dealt with according to the law, because no one is above the law and everyone is equal before the law [section 56 of the Constitution].
Investigation of Complaints Against Security Services
Section 210 of the Constitution obliges the Government to enact legislation setting up an effective and independent mechanism for receiving, investigating and remedying complaints from the public about misconduct on the part of members of the security services No such mechanism is in place although it is now three years since it was supposed to have been established. An application to expedite its establishment was taken to the Constitutional Court by Veritas. It was heard in January this year, but although the judges gave our counsel a sympathetic hearing they have not yet given judgment.
If the complaints mechanism envisaged by section 210 were set up promptly, it would help restore police/public relations by enabling the public to lodge factual complaints and reduce the number of exaggerated and unsubstantiated rumours and reports in the media against the police.
In the absence of a special mechanism under section 210, the Zimbabwe Human Rights Commission [ZHRC] seems an eminently satisfactory alternative for dealing with complaints of misconduct on the part of members of the security services. Its functions are set out in section 243 of the Constitution and include the following:
- to … ensure observance of human rights and freedoms,
- to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate,
- to protect the public against abuse of power … by State and public institutions and by officers of those institutions,
- to investigate the conduct of any authority or person, where it is alleged that any of the human rights and freedoms set out in the Declaration of Rights have been violated by that authority or person,
- to secure appropriate redress, including recommending the prosecution of offenders, where human rights or freedoms have been violated.
Under section 342(2) the Commission has all powers necessary for it to carry out these functions.
The Commission has also taken over the role of the PUBLIC PROTECTOR – the name says it all [see paragraph 16 of the Sixth Schedule to the Constitution].
HR Commission Willing to Investigate
The ZHRC has shown concern about reports that security services used excessive violence to control the disorders that broke out recently in Beitbridge, Harare and Bulawayo. In Bulawayo, where it was alleged that the police forcibly evicted tenants of a hostel and in the process caused the death of a child, the Commission sent a commissioner to look into the matter. The chairperson of the Commission indicated that the Commission is engaging the police continuously over human rights.
He has pointed out, however, that it is difficult to take action on the basis of unsubstantiated press reports, and the commission would prefer victims to come forward and make formal complaints.
What Must be Done
People who claim that their rights were violated by police officers or army personnel, and those who seek to uphold the rights of such victims, should lodge formal complaints with the Commission. The complaints should contain details of when and where the alleged violations took place, the names of the alleged victims, and where possible information that may identify the perpetrators. Complaints can be lodged at the Harare or Bulawayo offices of the Commission. Their addresses are:
Bulawayo: 127a Fife Avenue, Bulawayo. Telephone: 09 64170-3
Harare: 144 Samora Machel Avenue, Harare. Telephone: 04 705426 / 251085 / 251079 / 703616 / 703596 / 705268 / 701811 / 251077
Alternatively complaints can be e-mailed to the Commission using the form on its website at http://www.zhrc.org.zw/index.php
Only if such complaints are lodged can the Commission carry out its constitutional functions of upholding human rights and freedoms – in this case the right of peaceful demonstration protected by section 59 of the Constitution.
In troubled times such as these, when public protest is imminent, some points must be remembered:
- The right to demonstrate peacefully in public is guaranteed by the Constitution and must be respected by the law enforcement agencies. So long as demonstrations are peaceful they must be permitted. [Section 59 of the Constitution]
- The government has a duty to ensure that public gatherings are policed responsibly. [Section 52 of the Constitution]
- When demonstrations turn violent the security services are entitled to use force to quell them, but the force must be reasonable and proportionate in the circumstances. [Section 29(4) of the Public Order and Security Act]
- Demonstrators who are arrested must be treated with respect for their inherent dignity and must be accorded all their rights [as set out in section 50 of the Constitution].
- Everyone is equal before the law and the law must be administered impartially. All those who commit violent acts, whether members of the public or security service personnel, should be brought to justice. [Section 56 of the Constitution].
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