A HIGH Court judge has castigated the police for failing to uphold the country’s constitution when they unlawfully detained 12 MDC activists accused of banditry.
In a hard-hitting ruling Justice Charles Hungwe castigated the police’s conduct in failing to bring the suspects to court on time and holding them in communicado and especially for detaining a two-year-old child.
Â “No-one is above the law or below it,” he said. “In the present case the 3rd and 4th respondents have callously demonstrated the affinity to act as if they were above the law”.
Justice Hungwe made the ruling on November 11. However, the High Court only made the full written judgment available to the accused’s lawyers last week.
The judge ruled that the detention of Fidelis Chiramba, Terry Musona, Fanuel Tembo, a Mrs Mutemagau, Concillia Chinanzvavana, an Agrippa, Lloyd Tarumbwa, Pieta Kaseke, Larry Gaka, Emmanuel Chinanzvavana, Enerst Mudimu and Collen Mutemagau last October for allegedly training insurgents, bandits and terrorists contravened provisions of the constitution.
The judge made the ruling in a chamber application filed by the activists asking the court to compel the state to release them.
“From the above (evidence) it is clear that the police on or about 30th October 2008 took all the applicants into their custody,” Justice Hungwe said in his written judgement released by the High Court last week. “They were required by law to advise the applicants of the reasons for their arrest. The police did not do so almost 14 days after they effected an arrest!”
Hungwe said the police were legally obliged to afford the detained persons access to legal counsel as soon as possible.
“The police did not do so 14 days after arresting the applicants,” Hungwe ruled.
In terms of the Constitution of Zimbabwe the police were obliged to release the applicants if they failed to charge them with a criminal offence or bring them before a court of law within 48 hours of their arrest.
The High Court judge said the police failed to uphold the law and when they were sued, they denied any knowledge of the applicants when clearly they knew or ought to have known that the activists were being held in their custody.
Hungwe also castigated the conduct of Officer Commanding CID Homicide Crispen Makedenge and Constable Muuya who took leave of absence from their duties when they were dealing with the accused’s case. He also criticised the police for initially denying that it had no knowledge of the detainees.
“Such conduct by the police ought to be deprecated. Being officers of this court the respondents ought to have known better than to deny such a notorious fact as the detention of the applicants. This denial has placed their counsel in a position where he can hardly oppose the order sought,” said Hungwe in his judgment.
He said the state denied the applicants the protection of the law.
“The respondents (state) have permitted the applicants to be detained in communicado. People are at risk of torture or other forms of ill-treatment if they are detained in communicado,” ruled Justice Hungwe.
The judge said the risk increases the longer they are held as this allows for a longer period for injuries to be inflicted and visible marks of these injuries to fade.
Justice Hungwe said it was disturbing that the police had detained a two-year-old baby alongside its mother.
“It hardly needs me to point out that being a signatory to the Convention on the Rights of the Child, the Republic of Zimbabwe must be seen, through the acts of its public officials, to be protective of the rights of the child,” Justice Hungwe said.
One of the applicants was arrested and detained together with her two-year-old-baby.
There is no suggestion that the baby was suspected of having committed, or being about to commit a criminal offence at the time, Hungwe ruled.
The activists were released from custody at the beginning of the year and are currently on bail.
BY LUCIA MAKAMURE