CL/175/11(a)-R.2- 15 -
Geneva, 1st October 2004
meeting as unconstitutional. When asked about the compatibility of the POSA with Zimbabwe’s obligations under the International Covenant on Civil and Political Rights, the Chief Justice stated that the Supreme Court did not resort to judicial activism. Its guiding principle was respect for the other branches of government and thus respect for parliament as the legislator. It was for the legislator to incorporate the ICCPR into national law. The Court was not authorised “to manipulate” provisions and supplement them with UN provisions if the intention of Parliament was clear. It was, however, the Court’s role to draw Parliament’s attention to a conflict of norms.
Opposition MPs stated that there was loss of confidence in the judiciary and some challenges had indeed not as yet been brought before the Supreme Court, such as the question of a refusal to hold a meeting because it could cause problems, the fact that a meeting can be interrupted at any time, the issue of exceeding the allotted time and the issue of conditions.
Referring to the Access to Information and Protection of Privacy Act (AIPPA)11, the Chief Justice stated that a number of provisions had been challenged as unconstitutional before the Supreme Court. The Court had found that the requirement for journalists and publishing houses to be registered was not per se a violation of the Constitution. However, it was necessary to look at the requirements for registration: if registration was merely a formality, then it was not unconstitutional. However, if registration was meant to ensure “that certain views are propagated”, then it was unconstitutional. The requirement of approval of the Secretary of Information was in fact censure; however, this provision had not been challenged.
Minister Chinamasa stated first of all that the police must treat citizens on the basis of equality. They must of course not arrest anyone in the absence of evidence. He had told police “go after anyone who committed a crime and enforce the law”. The Acting Attorney General, the Commissioner of Police and the Chief Justice specified that an arrest can only take place if there is reasonable suspicion that the person has committed a crime or is about to commit a crime and that there is a prima facie case. The Commissioner of Police pointed out that any police officer has authority to arrest on his own authority and no one else was entitled to interfere. However, police officers might be sued if they took “a wrong decision”. It is not clear to the delegation, when the police require an arrest warrant.
Commissioner Chihuri informed the delegation that an arrested person is taken to the police station to which the arresting officer is assigned. Only if there is “a good reason”, can a person be taken to another station and, in such a case, authorisation is necessary. Only officers of the Central Intelligence Organisation (CIO), a body which is not part of the police, can take arrested persons wherever they wish. With regard to registration, the Commissioner of Police stated that detainees were registered and, in the case of their transfer, it was noted from which station they had been transferred and the families were informed accordingly.
The Chief Justice pointed out that an arrested person had to be brought before a judge within 48 hours.
Conditions of detention were described by the majority of the MPs concerned as extremely harsh, especially as regards sanitary conditions (overcrowded cells - Mr. Biti reported that in June 2003 he was held with 31 other detainees in a cell meant for four - infested with flies and other insects, a hole in the ground serving as toilet), preventive detention thus being in itself a punishment. It was also reported that very often, MDC detainees were held de facto incommunicado. Detainees were often taken from the local police station in the area of arrest to a police station or place of detention in a different area, without informing the lawyers or the family. Access by lawyers and the families was therefore often delayed, if not made impossible. Efforts to trace detainees were described as an uphill battle.
Referring to Section 76 of the Constitution, the Attorney General stated that his Office did not have any investigative power and relied in this respect entirely on the police or any other authority with
11 The AIPPA, along with the POSA, the Broadcasting Services Act, the Private Voluntary Organisations Act and the Labour Relations Amendment Act has been criticised at the national and international levels as being in violation of Zimbabwe’s obligations under the ICCPR and the African Charter on Human and Peoples’ Rights to respect freedom of expression, association and assembly.