by Alex T. Magaisa
A number of people have made enquiries regarding the brutal conduct of members of the Zimbabwe Republic Police (ZRP) during demonstrations by citizens in recent weeks. Last month, members of the anti-riot squad of the ZRP were captured on video brutally assaulting and generally mistreating arrested citizens. The conduct was abhorrent.
Comply with the Constitution
It is important to set out what the Constitution states in relation to police conduct and their responsibilities. It is trite that the constitution is the supreme law of the land, and all conduct must conform to the constitution. It is important to ensure that members of the police force are aware of their constitutional responsibilities. In this regard, section 208(1) makes it clear that “Members of the security services must act in accordance with this Constitution and the law”. This provision specifically reiterates what is already stated in section 2, that the Constitution is the supreme law of the land which binds everyone and to which every conduct must conform. Where police are violating constitutional provisions, it follows that their conduct is unconstitutional and unlawful.
Individual liability to compensate victims of unlawful arrests/detentions
Section 50(9) of the Constitution makes it clear that “any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention …”
This is an important provision which places personal liability for unlawful arrests/detentions on the individual police officer. It means the arresting or detaining officer can be sued in his or her personal capacity. An aggrieved person will be able to sue both the ZRP and the police officer for damages. According to section 50(9)(b), the police officer may only be protected under a law if he or she can demonstrate that they were acting “reasonably and in good faith and without culpable ignorance or negligence”. This is an incredibly high standard for police officers. It is not enough to say they were acting in good faith. They must also not act with culpable ignorance or negligence. Their conduct must also be reasonable. Therefore, in a case such as were the court found that Pastor Evan Mawarire was unlawfully detained, which rendered his arrest unlawful, he would be perfectly entitled to claim damages not just the ZRP but also the police officers who arrested and detained him.
It is important explain why the existence of a constitutional remedy against the individual police officer is critical and why it was included in the Constitution. While citizens have every right to sue the government or any of its institutions, such as the ZRP, for human rights violations, the problem is that even if the government loses and is ordered to pay damages, it generally doesn’t pay. When he was still Prime Minister many years ago and a lawyer successfully sued government for human rights violations and was awarded damages, President Mugabe simply dismissed it and said government would not pay. That has been government’s attitude to damages. It is also hard to enforce damages against the state because its property is protected from execution in settlement of debts under the State Liabilities Act.
This has always meant successful litigants against government are often left holding empty victories. There is no motivation to take legal action because they can’t enforce them. The consequence of this is that it has fuelled impunity in the security forces. The fact that they were given amnesties by President Mugabe after dark episodes of violence also fuelled impunity. It was these impediments against litigants that motivated the insertion of section 50(9) into the Constitution, the effect of which is that individual police officers who carry out unlawful arrests and detentions can be sued in their personal capacities. They cannot be protected by law unless they were“acting reasonably and in good faith and without culpable ignorance or negligence”.
Right to personal security
Section 52(1) of the Constitution also protects every person’s “right to bodily and psychological integrity, which includes the right — a. to freedom from all forms of violence from public or private sources …”
This clause is designed to protect people against violence both from the state and its institutions and from individuals acting in their private capacities. It covers members of the ZRP using violence against citizens, as well domestic violence. The sight of a group of police officers beating up a journalist during the August 3 demonstrations in Harare demonstrates a clear violation of section 52(1) of the Constitution. The journalist and indeed, any other person who was assaulted by police is entitled to sue the ZRP and its members in their individual capacities for contravening section 52(1).
Freedom from torture, cruel, inhuman or degrading treatment
Section 53 of the Cinstitution states that:
“No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”.
This is one of the most important rights in the Constitution, which has absolute protection and cannot be derogated from. In other words, there can be no exception whatsoever from this right.
However, police officers beating up citizens who were already under arrest arguably constituted torture, cruel, inhuman or degrading treatment in violation of section 53. It should be added that torture is a serious crime under international law which is strictly proscribed under numerous human rights instruments. Officers who are committing these acts must be reminded that they are exposing themselves to prosecution at international tribunals.
People who are subjected to such treatment when they are arrested must raise this issue before a magistrate or judge when they appear in court. They are entitled to be released as such conduct renders the arrest and detention unlawful.
Right to human dignity
Further, the Constitution specifically protects every person right to human dignity. Section 51 states that:
“Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected”
It is clear that the manner in which members of the ZRP are treating demonstrators and arrested persons shows blatant disregard of the right to dignity. Again section 50 provides that failure to treat an arrested person with dignity renders the arrest unlawful. In addition, victims of this violation can sue both the ZRP and the police officer responsible for violating this right.
Can members of ZRP claim they were acting under orders?
It is often thought that members of the ZRP are protected by the principle that they were acting under superior orders. However, as already shown above, section 50(9) already demonstrates that officers can be sued in their individual capacities if they unlawfully arrest or detain a person. They cannot hide under the defence that they were carrying out a superior order if their actions are patently unlawful and in violation of human rights. Further, a police officer cannot commit torture, an international crime, and claim that he or she was following a lawful order. The principle that police officers must not violate human rights is clearly stated under section 208(2) which provides as follows:
“Neither the security services nor any of their members may, in the exercise of their functions –
- act in a partisan manner;
- further the interests of any political party or cause;
- prejudice the lawful interests of any political party or cause; or
- violate the fundamental rights or freedoms of any person”.
It is clear that some members of the ZRP are violating this provision. The ZRP itself is partisan because it only applies coercive instruments and violence against opposition demonstrators and never uses the same tactics against ZANU PF demonstrators. They are selectively applying the law. In this regard, the ZRP is being used as an instrument to further the course of ZANU PF and to prejudice the opposition or general citizens expressing discontent at the government. More critically, by using unrestrained violence, the members of the ZRP are violating the fundamental rights and freedoms of demonstrators.
No indemnity for human rights violations
The fact that there is no indemnity for violation of human rights is emphasised by the fact that it is not even permitted during periods of public emergencies, when parts of the Constitution may be suspended. Section 87(4) states that
“No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration, may indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act”
If such indemnity laws are prohibited during public emergencies, it follows that they can never be permitted during normal, non-emergency periods.
Conclusion
All this leaves individual police officer exposed to legal action by victims of their human rights violations. Section 50(9) provides a clear remedy, but in addition, any violations of fundamental rights can attract individual legal action. A police officer cannot seek protection in the notion that he or she was acting under orders when they are violating fundamental rights and freedoms. Therefore in answer to the question whether police officers can be sued in their individual capacities for violating human rights, the answer is a clear “Yes, they can!”
waMagaisa
You can read more from Dr Alex Magaisa at www.alexmagaisa.com
