Police have no right to arbitrarily arrest and detain people without having established reasonable grounds to suspect that a person has committed a crime, a High Court judge said yesterday.
High Court judge Justice Nicholas Mathonsi said this while passing judgment in the case of a political activist, Joram Dube, who was arrested in Nkayi five months ago and detained for 14 days without charge.
Officer Commanding Nkayi District Jairos Wilstaff Chiwona, Nkayi Officer-in-Charge Hlalani Tshabangu, Commissioner-General of Police Augustine Chihuri and Home Affairs co-ministers Kembo Mohadi and Giles Mutsekwa, who has since been transferred to the Housing portfolio, were cited as the first, second, third and fourth respondents respectively.
Mathonsi said it was regrettable that senior officers policing an entire region would believe they had a legal right to detain suspects for a period of 14 days, when no such right existed.
“To think that other suspects out there not so fortunate to afford legal representation have their rights trampled upon as a result of the ignorance of the law enforcement agents is shuddering,” he said.
“The position of our law relating to the arrest of suspects is a simple one. It is that before arresting a person, except one who commits an offence in the presence of the arresting detail, such arresting detail must formulate a reasonable suspicion that an offence has been committed.”
The judge said once arrested and brought to a police station, section 32 of the Criminal Law (Codification and Reform) Act demanded that a suspect could only be detained for a period not exceeding 48 hours at the police station.
He said the provision of subsection three of the same section made it absolutely clear that no reckoning of time should allow the detention of suspects for a period exceeding 96 hours before being brought before a judicial officer to issue a warrant of further detention.
Mathonsi said the police erred by arresting Dube under Section 15(1) of the Public Order and Security Act, Chapter 11:17 which was repealed by section 282 of Act 23 in 2004 of the Criminal Law (Codification and Reform) Act because at the time of the arrest the section did not exist.
He said Dube languished in police cells because Chiwona was basking in the mistaken view that he was entitled to detain him for a period of 14 days without bringing him to court contrary to section 13 (2) of the Constitution, which guaranteed every citizen’s right to liberty.
“That celebrated and time-honoured principle of our criminal justice system that an accused person is innocent until proven guilty is still part of our law,” the judge said.
“So is the principle that police should investigate the alleged commission of a crime and formulate a reasonable suspicion that an accused has committed an offence before effecting an arrest. These legal and social mores (values and customs) have been with us since time immemorial.”
Mathonsi said for Chiwona, a senior police officer commanding an entire district, to swear that a suspect was arrested only for a crime docket to be opened and investigations to commence when the suspect was already languishing in custody was disturbing.
“It means that at the time of arrest, the arresting detail could not countenance any reasonable suspicion that the suspect committed the offence. Section 25 of the Criminal Procedure and Evidence Act authorises a police officer to arrest without warrant where ‘he or she has reasonable grounds to suspect’ that a person has committed an offence,” he said.
Dube, who was arrested in June for allegedly organising meetings for former MDC-M MP for Nkayi South Abednico Bhebhe, was challenging his treatment by police.
He had approached the court arguing his arrest and detention was unlawful and infringed on his constitutional right to liberty.