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» » Legal Perspectives: The Rights of Arrested and Detained Persons

...Sangomas allowed to visit prisoners

with Fidelicy Nyamukondiwa

The law gives man the right to liberty using the right hand and takes it away with the left hand. Whilst the Constitution confers the right to liberty to every person, a lawful arrest and or detention takes away the same right. This does not however mean an arrested or detained person is devoid of other rights. This editorial is a rundown of some of the fundamental rights of accused, arrested or detained persons encapsulated in sections 50 and 70 of the Constitution.
Arrested persons have the right to be informed of the reasons of their arrest or detention. If accused of committing offences, they must promptly be informed of the charges in sufficient detail. 16 languages are officially recognised in Zimbabwe. It follows that arrested persons must be informed of the reasons in a language which they understand.
Arrested persons have the right to be humanely treated. They should not be subjected to physical or psychological torture. It is inhumane to assault or harass an arrested or detained person. An arrested or detained person’s dignity must be respected. An arrested person must ordinarily be body searched by an officer of the same sex.
In Williams and Others v Co-Ministers of home Affairs and others, the Supreme Court stated that detention should not reduce a detainee to humiliation and indignity. The Williams case involved arrested women who had been ordered to remove their shoes and brassieres before being lodged in police cells. The cells were reportedly wet with human waste. Lessons drawn from this case is that it is justified at law for the police to order removal of shoes, if and only if the cell floors are clean and dry. The Supreme Court concluded that to order removal of bras is unconstitutional.
Accused persons have the right to remain silent. A person may elect to remain silent but the failure to mention some relevant facts may be used against that person in trial. This right should therefore be exercised cautiously. No-one must be compelled to make confessions or admissions. If evidence is obtained in any manner which violates constitutionally protected rights, it should ordinarily be excluded by the court. The case of State versus Slatter and Others and that of Jestina Mukoko v Attorney General are instructive in this regard.
Any person arrested must be allowed to call a spouse, relative, legal practitioner, friend or any person of choice using a state provided phone. This is a constitutionally protected right. A police officer or any responsible person cannot be said to have violated this right if no phone is available. At their own expense, arrested or detained persons must be allowed to choose and consult a lawyer and a medical doctor of choice. They must also be informed of this right.
Persons in detention, either at a police station or at prison, have the right to communicate with and be visited by a relative, lawyer or a medical doctor. A close reading of the constitution suggests that arrested or detained persons are allowed to communicate with and be visited by a n’anga/inyanga. Whether or not Sangomas should be allowed to take with them their Sangoma kits is debatable. If however a church pastor is allowed to take a bible with him, nothing should stop a Sangomas to carry his/her hakata/amathambo. This right cannot however be exercised willy-nilly. It is subject to administrative discretion of the responsible authorities.
To be presumed innocent until proven guilty is a constitutionally protected right. As a result, it does not follow that every arrested person must be detained. An accused or arrested person has the right to be released pending trial unless where there are compelling reasons justifying detention. Where there are compelling reasons justifying detention, the person so detained must be brought before a magistrate or a judge within 48 hours. Any detention past 48 hours is prima facie illegal.
Every arrested person has a right to choose and be represented by a lawyer of choice. If there is a likelihood that substantial injustice would result, an accused person must be represented by a state assigned (prodeo) lawyer. A prodeo lawyer is not paid any money. As a matter of common practice, all persons accused of murder in Zimbabwe are represented by prodeo lawyers. A person can  decline to be represented by a prodeo lawyer and elect to be represented by a lawyer of  choice at his/her own expense.
The Police, Prosecution, Magisterial, Prison officials and every person involved in the criminal justice system must respect, protect promote and fulfil the rights of accused, arrested or detained persons. An arrest or detention which violates the rights reaffirmed in this editorial is illegal.  A person illegally arrested or detention is entitled to compensation from the person responsible for the illegality. Judicial/public officers who act reasonably, without malice nor negligence are cushioned from civil suits.
Fiat Justitia Ruat Caelum!

Fidelicy Nyamukondiwa writes here in his personal capacity. Contactable on 0785827154

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