Right to personal liberty

Every person has a right to personal liberty, but a person can lawfully be deprived of liberty upon reasonable suspicion that he or she has committed or is about to commit a criminal offence. This is provided for in section 49 of the Constitution (section 13(1) and (2) in previous constitution.) Section 49 provides that the right to personal liberty includes the right not to be deprived of their liberty arbitrarily or without just cause.

In Mukoko v Attorney-General S-12-11 the constitutional court decided that it is a breach of the section 13(1) (the right to liberty) to charge and prosecute a person where the reasonable suspicion of committing an offence is based on information obtained from the accused by the use of torture or inhuman treatment.

Rights of arrested or detained persons

These rights are contained in s 50 of the Constitution. These will be dealt with in detail under the relevant topics below.

Rights of persons accused of criminal offences

These rights are contained in s 70 of the Constitution. These will be dealt with in detail in relevant topics below.

Right to fair trial by independent and impartial court

Section 69(1) of the Constitution provides:

Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.

The right to a fair trial is absolute as section 86(3)(e) provides that no law may limit and no person may violate the right to a fair trial.

However, the right to a public trial is not absolute as section 86(3) does not provide that such right may not be limited by a law. In other words, this right may be restricted provided it is restricted in accordance with the provisions of section 86(2). For instance, it would be appropriate to hold a rape trial may be held in camera where the complainant is a child.

In Mashayamombe HH-596-15 the court said that the fairness of the trial must be judged by reference to the specific instances of fairness given in s 70(1) to (5), as well as other notions of fairness and justice which are not necessarily listed in that section. Those other notions of fairness and justice must reflect the normative value system upon which our constitutional order is founded. In this case the accused was aware from his initial remand that he was facing allegations of murder in addition to the other offences which he has been convicted of. It is not as if he was misled into thinking that the murder allegations would not be proceeded with once the other charges had been completed. It would be a subversion of justice for him to escape prosecution on the basis that he had already been convicted of lesser charges. The offences were totally different from each other and did not arise from one “transaction”. There was no duplication of charges.

Right to equal protection of law

Section 56(1) of the Constitution provides:

“All persons are equal before the law and have the right to equal protection and benefit of the law.”

In Mashayamombe HH-596-15 the court said that this provision should be given broad, substantive content in order to ensure that substantive rather than merely formal equality is realised. To that end, equality before the law should entail entitling everyone to equal treatment by courts of law or equality in the legal process. The section protects against arbitrary and irrational State action. The impact of the State action must be considered in the assessment of whether the equality provision was contravened, but if the State has a defensible purpose, together with reasons for its actions that bear some relationship to the stated purpose, then the action cannot be irrational.

Trial within reasonable time

Section 69 of the Constitution provides that a person charged with a criminal offence has a right to a fair hearing within a reasonable time by an independent and impartial court. (Section 18(2) in the previous constitution.)

Section 50(6) of the Constitution provides that a person who is detained pending trial for an alleged offence and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions to ensure that after being released they—

• attend trial;
• do not interfere with the evidence to be given at the trial; and
• do not commit any other offence before the trial begins.

(These provisions were found in s 13(4) of the previous constitution.)

The case law on trial within a reasonable period of time is dealt with later.

Exclusion of evidence obtained in violation of rights

Section 70(3) provides that in a criminal trial, evidence that has been obtained in a manner that violates any provision of the fundamental human rights and freedoms contained in Chapter 4 must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.

Stay of prosecution where person tortured

The constitutional prohibition against torture is now found in section 53 of the constitution. This provides that no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The equivalent provision in the previous constitution was section 15(1)

In Mukoko v Attorney-General S-12-11 the court also ruled that s 15(1) of the constitution prohibits absolutely torture or inhuman or degrading punishment or treatment. If a person is subjected to torture and inhuman and degrading treatment before being charged and prosecuted that person is not ipso facto entitled to stay of prosecution. The prosecution is lawful if it is based on evidence not obtained in violation of s 15(1) but the prosecution is not lawful if it is based solely on evidence obtained in violation of s 15(1).