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- 16-CL/175/11(a)-R.2

Geneva, 1st October 2004

such powers.  However, his Office was entitled to guide the police as regards the circumstances under which arrest may be necessary.  In short, his Office could only tell the police what to do, including instituting an investigation, but not how to do it.  Once the investigation was completed, the Attorney General could ask for further investigation, if appropriate, and assess whether or not to institute and undertake criminal proceedings.

The Commissioner of Police complained about the burden which evidence taking puts on police.  In his view, the relevant rules were too stringent.  For example, if 50 persons stoned a house, the police was obliged to identify those who had stones and actually threw them.  In other countries, he said, the police could arrest the whole group and later discharge them for lack of evidence.  The Z.R.P. intended to buy vehicles fitted with cameras to control riotous situations which would make it easier to produce the necessary evidence.  The Commissioner stated further that there was a special procedure - using Form 86 - for cases when there was not enough time to carry out an investigation.  In such cases, the persons concerned were put on remand, pending investigation.

6.5.Acting upon complaints of torture, ill-treatment and arbitrary detention

6.5.1.Judicial action

As stated under 6.1.2., the Commissioner of Police said that complaints against police officers were investigated and that nothing was “swept under the carpet”.  However, the majority of allegations of beating were nothing else but “hot air”.  As to the case of Mr. Sikhala, he said that Mr. Sikhala was not in a police station when he was tortured.  

The Acting Attorney General stated that, generally speaking, allegations of undue pressure in judicial proceedings had become a pattern and were a new legal phenomenon.  As regards procedure, he specified that upon arrest, suspects were brought before the court for remand and, on that occasion, were asked whether or not they had any complaints.  If allegations of torture were made, the magistrate issued an order for medical examination and the relevant report was subsequently submitted to court.  Police was requested to respond to allegations.  If a testimony was challenged in court, then a trial within a trial had to take place. If the police committed a criminal offence, the Attorney General intervened.  Although the Attorney General’s Office, because of a lack of necessary means, had difficulties in “looking for cases”, something had to be done in the case of media reporting about crimes. (The Acting Attorney General said that he was unaware of the torture allegations in the case of Mr. Sikhala).  However, he said, it would help if complaints were made and went on to say that citizen’s should sue for arbitrary arrest.  However, most ended up by lodging a notice of intention only.12   In the last six months, he said, only one complaint had been made which had not yet been followed-up.

The Chief Justice said that MPs should assert their rights and sue the State for any unlawful action.  This, he said, did not happen.  He was aware of only three or four cases where complaints about arbitrary arrests had been lodged although legal aid was available and court costs were reimbursed in the case of a successful complaint.

6.5.2.Parliamentary action

The parliamentary authorities informed the delegation that there were no parliamentary mechanisms to look into cases of alleged ill-treatment or torture of members of parliament.  Such cases, as well as cases of stoning of cars or houses were of a judicial nature and had to be dealt with by the judiciary. hoc committees in matters pertaining to Parliament, for example contempt of the House.  Thus, he had recently set up a committee to investigate a paper that had been tabled in Parliament to the effect that some MPs had more than one farm.  The committee’s mandate was to investigate whether this was true or not (see below 8.2.).  

The Government Chief Whip expressed the view that matters such as torture or beatings of MPs should be discussed in Parliament and that the Zimbabwe Parliament “should buy this from other parliaments”.  

12 According to the Attorney General, any person aggrieved by State action who wants to sue the State has to give a notice of intention within three months.  Court action must then be taken by the aggrieved person within 8 months, otherwise the matter will be dropped.  

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