The Police Service (the Zimbabwe Republic Police) is established by section 219 of the Constitution, with the function of “detecting, investigating and preventing crime”. It consists of a Regular Force (the main, permanent force), a Police Constabulary (formerly the Police Reserve), and ancillary members. Members of the Police Constabulary and ancillary members, when on duty, have the same powers as members of the Regular Force. The Police Service is under the command of the Commissioner-General of Police, appointed by the President after consultation with the Minister responsible for the Police Service. The Commissioner-General can be removed from office by the President for any reason, after consultation with the Minister.
The term “police officer” (a member of the ZRP) must be distinguished from “peace officer”, which is a term used in the Criminal Procedure and Evidence Act to denote police officers and other persons who are given most of the powers of a police officer.
The following persons are peace officers (the list is not exhaustive):
- police ;
- members of the close security unit attached to the Cabinet Office;
- members of the Central Intelligence Organisation (CIO);
- and justices of the peace;
- the Sheriff and deputy sheriffs (but not, curiously, messengers of the magistrates court);
- officers of the Zimbabwe Anti-Corruption Commission;
- prison officers;
- immigration officers
- inspectors of mines
- parks officers, within national parks and other areas under the control of the Parks and Wild Life Management Authority;and
- vehicle inspectors under the Road Traffic Act.
- chiefs, headmen, village heads and chiefs’ and headmen’s messengers, within their areas of jurisdiction;
Obviously, if the Police are to carry out their function of controlling crime, they must be able to question suspects and witnesses in order to obtain information; equally obviously, their power to question or interrogate people must be carefully controlled to prevent abuse.
The Police do not need any specific statutory power to ask people questions; anyone can do that. But unless the Police are given power to demand answers, anyone is free to remain silent when the Police put questions to them, because there is no general duty on the public to give the police information concerning the commission of a crime. It must be remembered, too, that suspects who have been arrested have a right to remain silent, and must be informed promptly of this right and of the consequences of exercising it. Furthermore, if they have been arrested or are being detained, they must be informed of their right to consult in private with a legal practitioner of their choice — and of course they must be allowed to exercise that right.
To what extent can the Police question or interrogate suspects, particularly suspects who have been arrested and are in detention? This was considered in the South African case of Gosschalk v Rossouw 1966 (2) SA 476 (C), where a detainee sought an interdict preventing the Police from interrogating him. At pages 492-3, Corbett J (as he then was) said:
“I consider that police interrogation should be limited to that which is necessary for the investigation of the offence or alleged offence in question and that, in extent, it should not exceed what is reasonable in all the circumstances of the case. In determining what is reasonable in a particular case the Court must seek to reconcile two competing interests, viz. (i) that of the individual to be protected from illegal or irregular invasions of his liberties by the authorities, and (ii) the interest of the State to secure information and evidence relating to crimes which have been committed so that justice may be properly administered. … Neither of these two interests should be allowed to wholly displace the other. It is the duty of the Court to ensure that a fair balance between them is maintained and the basic criterion must be the test of reasonableness as applied to the particular facts of the case.
“… Obviously they [the Police] are not entitled, in order to induce a detainee to speak, to subject him to any form of assault or to cause his health or resistance to be impaired by inadequate food, lack of sleep, living conditions or the like. Nor may they resort to methods of interrogation commonly referred to as the ‘third degree’. … In this context I understand the term ‘third degree’ to refer to a severe and prolonged cross-questioning designed to overcome the powers or resistance of the person being interrogated. Furthermore, in cases where the person being interrogated is himself suspected of having committed a crime, he cannot be required to incriminate himself under interrogation …
“On the other hand, I do not think that the consent of the person to be interrogated is a necessary pre-requisite to interrogation. Circumstances may well render it perfectly reasonable for the interrogation to be persisted in even though the person concerned refuses to answer questions. Thus the police might wish to exercise a moderate degree of moral persuasion in the hope that the person concerned might change his mind and become co-operative. The difference between this approach and the third-degree method is, of course, largely one of degree and the dividing line can only be the criterion of reasonableness: the difference is nevertheless a very real one.”
A further requirement was added in S v Slatter & Ors 1983 (2) ZLR 144 (H) at 166, where Dumbutshena JP (as he then was) said, “If an accused person wants a legal practitioner before, or during, interrogation, the police investigators must stop their investigations [sic: he meant “interrogation”] and only resume after the accused has had consultations with his legal practitioner.”
Under section 39A of the Criminal Procedure and Evidence Act [Chapter 9:07] people who voluntarily go to a police station without having been arrested are entitled to leave the station whenever they wish unless they are then arrested. If they are arrested at the police station they must be told of that fact and then they are of course entitled to all the rights of persons under arrest, such as the right to contact their relatives and lawyers, and so on.
Under section 54(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], a police officer may enter premises without a warrant, in order to interrogate a person whom the officer reasonably suspects may furnish information regarding a crime or an alleged crime. An officer may not, however, enter a dwelling without the consent of the occupier.
In England and South Africa there are codes of conduct to guide the police in their dealings with suspects. In South Africa they are known as the Judges’ Rules; in England the former judges’ rules (dating from 1913) have been replaced by Code C Code of Practice issued by the Home Secretary under the Police and Criminal Evidence Act 1984.
The South African Judges’ Rules were drawn up at a judges’ conference in 1931. They include the following admonitions:
- The police may put questions to people who are not suspects without cautioning them.
- The police must caution a person who has become a suspect before they put questions to the person.
- Questions should not be put to a person in custody, unless he or she is making a voluntary statement in which case questions can be put to clarify what he or she is saying, i.e. to remove elementary or obvious ambiguities.
The rules do not have the force of law in South Africa but are merely administrative directions designed for the guidance of the police and the better administration of justice. On the other hand, if the police disregard the guidelines when questioning suspects, they run the risk that any statements the suspects make in answer to the questions may be ruled inadmissible. The rules have been largely ignored for many year but in any event, they have to a some extent been superseded by the stringent constitutional provisions protecting the right to silence.
No such rules exist in Zimbabwe, although they may be useful as laying down a standard of conduct to be expected of the police.
Section 41B of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for the taking of bodily samples from one or more persons at the request of a peace officer who is satisfied that there are reasonable grounds for believing that any of the persons has committed a crime and that the bodily sample, when analysed, will be of value in the investigation of the crime by eliminating or including any of them as suspects. If a person does not consent to the taking of a bodily sample, a police officer of or above the rank of inspector may apply to a judge or magistrate for a warrant. Although the section does not say this specifically, it is implied that the warrant will authorise the compulsory taking of a bodily sample from the person concerned.
Bodily samples taken from a person who is later charged with a crime must be destroyed if the person is acquitted or the charge is withdrawn. Samples taken from persons who are not charged with a crime must be destroyed on the conclusion of the criminal proceedings for which they were taken.
Sections 27(4) and 26(3) of the Police Act [Chapter 11:10].
Section 221 of the Constitution.
Section 7 of the Police Act [Chapter 11:10] as read with section 340 of the Constitution.
What follows owes a good deal to Joubert & Geldenhuys Criminal Procedure Handbook 2nd ed p. 101 ff.
There are specific instances where the law imposes a duty on members of the public to give such information. For example, a citizen of Zimbabwe who knows that someone is trying to overthrow the Government will be guilty of concealing treason if he or she does not inform an official (section 21 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. And in terms of section 26 of the Criminal Procedure and Evidence Act [Chapter 9:07] a person whom a peace officer reasonably suspects of having committed a crime must supply the peace officer with his or her name and address when called upon to do so.
Section 50(4)(a) & (b) of the Constitution.
Section 50(1)(b)(ii) and 50(5)(b) of the Constitution.
The rules are set out in Gardiner & Lansdown SA Criminal Law and Procedure 6th ed vol 1 pages 613-4.
R v Hackwell & Ors 1965 RLR 1 (A) at 17; R v Tapeson 1965 RLR 146 (A).
A bodily sample is defined in section 2 of the Criminal Procedure and Evidence Act as an intimate or buccal sample. A buccal sample is a sample of saliva, but there is no definition of “intimate sample”.
Section 41B(5) of the Criminal Procedure and Evidence Act.