CONSTITUTION WATCH 3/2019
[7th February 2019]
Section 210 of the Constitution not Implemented
Security Forces: Still no Independent Public Complaints Mechanism
Section 210 of the Constitution provides for the investigation of complaints against the security services [i.e. the Police Service, the Defence Forces, the State intelligence services and the Prisons and Correctional Service].
The section reads as follows:
“An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”
Nearly six years after the Constitution came into force, no independent mechanism has been established in terms of section 210.
Veritas’s Concourt Case : For Implementation of Section 210
In 2015 Veritas instituted an application in the Constitutional Court [Mahiya v Minister of Justice & Others CCZ 42/2015] calling on the government to implement section 210 by gazetting a Bill to set up the independent complaints mechanism envisaged by the section. The application was heard in January 2016 and the Bench seemed to be sympathetic with the applicant’s case. The Court adjourned the hearing, however, without delivering a judgment or making an order on the application.
Nearly three years later we are still waiting for the Court’s decision.
Prejudicial Effect of Delay
The government’s inexcusable delay in setting up the independent complaints mechanism, and the Constitutional Court’s inexplicable delay in ordering the government to comply with section 210, have seriously prejudiced countless people who were unable to get their grievances against the Police and Defence Forces properly investigated. The need for an independent complaints mechanism has been thrown into sharp relief, first by the events following last year’s election, and recently by the suppression of last month’s protests. People were killed by soldiers and police officers, and there have been allegations of rapes and beatings on a shocking scale. All these cases need to be investigated so that the perpetrators can be identified and, where appropriate, punished. Victims may be reluctant to approach the Police to lodge complaints against police officers or army personnel, and even if they do the Police may be reluctant to investigate their complaints.
What is needed is an independent body which the public can trust, to receive complaints and ensure they are properly investigated and followed through.
Need for Trust
In the previous sentence we said that there needs to be a complaints body which the public can trust. Trust is very important: the public must be able to trust its law enforcement agencies – the Police, the Judiciary (the courts) and the Executive (the government). The public must be confident that all these agencies will perform their roles in law enforcement efficiently and impartially.
In regard to trust, none of these agencies shows up very well:
The Police are regarded by many members of the public as politically biased. This was implicitly acknowledged by the Motlanthe Commission when it recommended that “the Police should be further trained to be professional and non-partisan”. If the Police had been anxious to improve their public image, they could have set up their own complaints body without waiting for the government to establish one. Legislation is not needed, so long as the Police are prepared voluntarily to accept oversight by a non-statutory body.
The courts’ reputation has not been enhanced by recent arrests and allegations of corruption on the part of magistrates and prosecutors. In the matter of section 210 of the Constitution, the extraordinary delay on the part of the Constitutional Court in giving judgment in a clear-cut but important case does not enhance the Court’s standing as one of the pillars of the Constitution.
The Executive is primarily responsible for establishing one or more independent complaints mechanisms under section 210 of the Constitution. It has failed to do so for almost six years. That does not suggest a great concern for constitutionalism.
The Police and Defence Forces themselves have admitted that they have “bad apples” and “criminal elements” among their members. A proper complaints mechanism would help them weed out members whose misconduct tarnishes the reputation of the rest, and would give us security services of which all patriotic Zimbabweans can be proud. Establishing such a mechanism might also assist the government in engaging with the international community.
There is a crying need for the Police and the other security services to be more accountable and responsive to the public. Establishing one or more independent complaints mechanisms is an important way to achieve this. That is why section 210 of the Constitution was enacted.
Nearly 2 000 days have passed since the Constitution was enacted. If the government had started drawing up a Bill to implement section 210 of the Constitution and its legal drafters had written just one word each day, there would be a perfectly adequate Bill ready to put before Parliament.
Just over 1 120 days have elapsed since the Constitutional Court heard the application brought by Veritas to compel the Government to implement section 210. If a judge had written just one word of a judgment every day since then, there would now be a perfectly respectable judgment ready to be issued by the Court.
Instead there is nothing. The cries of the victims go unheard