CONSTITUTION WATCH 1/2018
[18th September 2018]
Now elections are over Veritas is resuming its series of bulletins on implementation of the Constitution
Implementation of Section 210 of the Constitution
Section 210 of the Constitution has still not been implemented over five years after the main parts of the Constitution came into force on 22nd August 2013.
The section provides for setting up an independent body to receive and investigate complaints against the security services [i.e. the Police Service, the Defence Forces, the State intelligence services and the Prisons and Correctional Service]. It 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.”
The need for an independent complaints mechanism is obvious. The Police and the Defence Forces are the coercive arms of the State which the government employs to enforce obedience to the law and the maintenance of public order. As coercive arms they can use force, and if they do there will inevitably be complaints about their use of it. In the interests of the public, and to protect their own reputation, it is important for these complaints to be investigated fully and impartially by an independent body.
Five years after the Constitution came into force, no mechanism has been established in terms of section 210.
Veritas’s Court Case
In April 2015 Veritas instituted an application in the Constitutional Court [Chironga v Minister of Justice & Others CCZ 42/2015] calling on the government to implement section 210 by gazetting a Bill to set up the independent complaints mechanism envisaged by the section.
The application was heard in January 2016 and the Bench seemed to be sympathetic with the applicant’s case. In fact the only question raised was how long the government should be given to implement this important section of the Constitution: the government lawyer suggested a year and our lawyer Mr Biti suggested three months. The Bench asked each party whether a compromise of six months would satisfy both and both agreed.
The Court adjourned the hearing, however, without delivering a judgment or making an order on the application.
Where’s the Judgment?
Two and a half years later we are still waiting for the Court’s decision.
Prejudicial Effect of Delay
The government’s inexcusable delay in setting up the independent complaints mechanism, and the Constitutional Court’s delay in ordering the government to comply with section 210, has seriously prejudiced countless people who have been unable to get their grievances against the Police and Defence Forces properly investigated.
Public confidence in the Police might not have deteriorated so much if the public felt they had effective recourse if the Police overstretched their authority. Maintenance of law and order in the long run depend on good relationships between the public and those responsible for law and order.
Events before and after the recent election illustrate this, in particular the tragic shooting of six demonstrators in Harare. If the independent complaints mechanism had been set up,
- Demonstrators might have had more respect for the police
- The police would have thought twice about calling in the army
- The army would have taken more care if they knew they would be held to account.
- relatives of the deceased could have turned to it for a proper investigation of the shooting, instead of having to rely on a commission of inquiry which lacks investigatory powers beyond summoning and questioning witnesses.
Need for a Judgment
The government is reluctant to establish the complaints mechanism – that is clear – so it needs the spur of a court order to make it do so. Which is what we asked for in the Chironga case.
The Constitutional Court, above all courts, is responsible for upholding the Constitution and ensuring that the government obeys it. The Court is also bound by the Constitution, which states in section 165 that “justice must not be delayed”.
A delay of over two and a half years in giving judgment in what seems a clear-cut case is inexplicable. It also runs counter to the Judicial Service (Code of Ethics) Regulations, 2012, section 19(1) of which provides that if a court does not give judgment immediately after hearing a case the judgment should normally be delivered within 90 days and, except in unusual and exceptional circumstances, should not be delivered more than 180 days later.
The Code of Ethics binds members of the Constitutional Court just as much as other judges.
Quis custodiet ipsos custodies?