CONSTITUTION WATCH 8/2020
[3rd June 2020]
Arrest of Advocate Thabani Mpofu
A leading Zimbabwean lawyer, Adv Thabani Mpofu, has been arrested by the Police, apparently on two charges of defeating or obstructing the course of justice arising out of an affidavit he is said to have prepared and filed in court. He was arrested on Monday and has been detained in police cells since then. He is expected to be brought to court this morning.
The Law Society of Zimbabwe has issued a statement expressing profound concern at Adv Mpofu’s arrest and detention, pointing out that the State has an obligation to allow lawyers to perform all their professional functions without intimidation, hindrance, harassment or improper interference. The statement can be viewed on the Veritas website [link].
Veritas associates itself with the Law Society statement and wishes to add some further points.
It is recognised internationally that lawyers play a vital role in upholding the rule of law and fundamental human rights, in particular the right to a fair trial. If lawyers are to perform that role they must be independent of State control and free from harassment. Article 16 of the UN Basic Principles on the Role of Lawyers (1990) states:
“Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.”
This does not mean that lawyers are above the law or immune from arrest and prosecution. What it means is that law enforcement authorities should not arrest a lawyer except where it is absolutely necessary to enforce a law.
Arrest Not to be Resorted to Lightly
Arrest is a drastic infringement of a person’s dignity and freedom of movement, and should not be resorted to unless it is the only practical way of bringing a person to justice. Bringing suspected criminals to justice is the main purpose of an arrest, and law enforcement authorities must not use their powers of arrest in order to intimidate or humiliate suspects, or even to interrogate them because suspects have a right to silence guaranteed by section 50(4)(a) of the Constitution, which reads as follows:
“Every person who is arrested or detained for an alleged offence has the right ... to remain silent”.
Generally, suspected criminals should be arrested only if they are likely to abscond or flee the country, or commit further crimes or interfere with the evidence ‒ none of which seems to apply in Adv Mpofu’s case.
Bringing the Arrested Person to Court
Advocate Mpofu was arrested the day before yesterday and had not been brought before a court by yesterday evening. According to section 50(2) of the Constitution, anyone who has been arrested:
“must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place”
Those words “as soon as possible” are important. The police cannot wait until the last minute, until the 48 hours are up, before bringing a suspect to court: they must do so as soon as possible, not when it is convenient for them.
In this case was it really impossible, throughout the whole of yesterday, for the police to bring Adv Mpofu from Rhodesville Police Station to Harare Magistrates Court?
Veritas cannot comment on the merits of the State case against Adv Mpofu. But even if the case is completely watertight ‒ and from what the Law Society has said there are doubts on that score ‒ his arrest was unwarranted and his detention excessive. The conduct of the Police gives rise to a suspicion that the State’s real objective was to silence a human-rights defender and intimidate other like-minded lawyers.