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» » Legal Perspecvtives: Legality of police searches

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Fidelicy Nyamukondiwa

The right to privacy is a constitutionally protected human right. This right includes the right of persons not to have their body, home, premises or property searched. It also encompasses the right not to have homes or premises entered without permission. In view of these constitutional provisions, is it legal for a police officer to enter premises or vehicles and conduct a search without a warrant? This editorial seeks to clarify the position of the law regarding police searches.
Limitation of human rights.
The fact that a person has human rights does not mean that all those rights cannot be interfered with. The law permits certain rights to be restricted. Such restrictions on the enjoyment of human rights are called limitations. Section 66 of the Constitution for example provides that “every Zimbabwean citizen…has the right to move freely within Zimbabwe.”  Can u freely move within Zimbabwe during the ongoing COVID-19 lockdown?  You can’t because your right to freely move is being limited through Statutory Instrument 83 of 2020.
There are however some rights which cannot be limited under any given circumstances. These are known as absolute or unfettered rights. The right not to be tortured is one example of an absolute right.
Limitation of privacy rights.
The right to privacy is not an absolute right. It is limitable. The Criminal Procedure and Evidence Act (CPEA) is the principal law setting out the grounds upon which the right to privacy can be limited. As hinted prior, the right to privacy includes the right not to be searched. The CPEA empowers the police to conduct searches both with and without warrants.  A warrant in this context is a document issued by a magistrate or judge authorizing the police to conduct a search.
The CPEA provides that a police officer, after properly identifying self, can search a person or premises and thereafter seize articles without a warrant. The person to be searched or the owner/occupier of the premises or vehicle concerned must however give permission to the search.
Ironically, where a police officer intending to search premises or a vehicle fails to get permission, he or she is allowed at law to break open doors or windows for the purpose of entering and searching. Such powers must however be exercised reasonably and without malice or negligence. A police officer who acts maliciously or negligently can be sued. Simply put, the victim can be compensated by any malicious or negligent police officer.
The main purpose of searching is to seize articles. Articles that can be seized includes articles with something to do with the commission of offences. It must be emphasised that where the delay involved in obtaining a warrant would defeat the purpose of the search or prevent seizure of relevant articles, a police officer is allowed at law to search for and seize articles without a warrant.
Consider a police officer who receives a tip off to the effect that the person walking across the street is in possession of recently stolen items. Should the police officer first proceed to the police station, type out paperwork and thereafter look for a magistrate to issue a search warrant? In such cases, a police officer is permitted to search without a warrant.

Issue of receipts
Where a police officer seizes certain articles, he/she is mandated to issue what is known as a full receipt.  This receipt must be handed to the owner of the articles. If however the owner is arrested, he/she can only be handed the receipt after being released.  Upon release, the person from whom articles were seized has a right to demand and receive the full receipt. Failure by a police officer to issue a full receipt upon demand is a criminal offence.
If the owner is unavailable or is arrested, the full receipt must be given to the person in charge of the premises or vehicle from which the article is seized. In the absence of a person in charge, a copy of the receipt must be handed to any other ‘apparently responsible person’ present at the premises or in the vehicle concerned. Where no one is present, a copy must be attached or left at the premises, land or concerned vehicle.  Again, a police officer can be arrested for a failure to issue a full receipt.
Conclusion
Every person has a right to privacy and this right includes the right not to be searched and not to have premises entered without permission. This right, like many other rights is not an absolute right. It is subject to limitations. Police officers are empowered at law to search persons, premises or their vehicles even without a warrant. Where necessary, they are allowed to break open doors or windows for the purpose of searching.
Disturbing police officers executing their duty is an offence punishable with imprisonment. It is also a criminal offence to obstruct the course of justice or to resist a lawful arrest. Failure by a police officer to issue a full receipt after seizing property is a criminal offence. Citizens and law enforcers must therefore be acquainted with basic provisions of the law for Ignorance of the law is not a defence.
Fidelicy Nyamukondiwa is a legal columnist who writes here in his personal capacity. Contactable on 0785827154 nhanyams@yahoo.com  https://twitter.com/FidelNyams

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