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By Veritas
Introduction
This Bill proposes to bring the Police Act into conformity with the provisions of the Constitution. The Bill can be accessed on the Veritas website [link] as can the Act itself [link].
Importance of the Bill
The Police Act [which we shall call the Act in this bulletin] regulates the appointment and discipline of police officers and the composition of the Police Service. Since police officers are responsible for combating crime and maintaining public order and are the State officials who interact with the public more frequently than any others, it is essential that the Act should conform with the Constitution in every respect. Hence the Bill is an important one.
The public hearing on the Bill
The Bill has been presented in the National Assembly and given its first reading. It is now being considered by a joint parliamentary committee consisting of the National Assembly’s Portfolio Committee on Defence, Home Affairs and Security Services and the Senate’s Thematic Committee on Peace and Security. The joint committee will be holding a virtual meeting on the Bill at 10 a.m. tomorrow, the 4th of August. Members of the public who wish to participate in this virtual hearing must phone Parliament’s Public Relations Department at the following numbers to obtain a link for the meeting: 024 2700181 – 6 or 024 2252936.
In this bulletin, we shall analyse the Bill, but before doing so we shall look at what the Constitution and the Police Act say about the Police Service and its functions.
The Constitution and the Police Service
Section 219 of the Constitution establishes the Police Service with a mandate of preventing crime, protecting lives and property, maintaining law and order, upholding the Constitution and enforcing the law without fear or favour. The section further provides that the Police service must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by the Constitution. This reinforces section 208 of the Constitution, which says that members of all security services, including the Police, must be non-partisan and must not be active members or office-bearers of any political party or organisation.
The Police Service is headed by a Commissioner-General of Police who, in terms of section 221 of the Constitution, is appointed by the President after consultation with the Minister responsible for the police [currently the Minister of Home Affairs]. The Commissioner-General is appointed for a five-year term, renewable once, but can be dismissed at any time by the President after consultation with the Minister of Home Affairs [section 340(1)(f) of the Constitution]. The Commissioner-General must obey generally written policy directives given by the Minister acting under the authority of the President [see section 221(4) of the Constitution].
The Police Service Commission [PSC], established by section 222 of the Constitution, is responsible for employing police officers [called “members” in the Act] and fixing their conditions of service, and for that purpose making regulations with the approval of the Minister of Home Affairs [see section 223 of the Constitution]. By vesting the PSC with the power to appoint members of the Police Service, the Constitution impliedly makes the PSC responsible for promoting and dismissing them [see section 340(1) of the Constitution].
The Police Act
The Police Act fills in the many gaps left by the Constitution. It details the functions of the Commissioner-General, the way in which members of the Police Service [who are called “members” in the Act] are appointed, promoted, disciplined and dismissed, the way in which the PSC is to exercise its functions, and so on.
It should be noted that the Act does not give police officers their powers to deal with crime and criminals: those powers, such as the power to arrest suspects, search premises and question witnesses, are set out in the Criminal Procedure and Evidence Act.
Analysis of the Bill
The purpose of the Bill, as we have said, is to bring the Police Act into conformity with the Constitution. To achieve this, it will make the following changes to the Act:
Inserting a new preamble, setting out sections 219, 222 and 223 of the Constitution. [The current preamble reflects the provisions of the former Constitution.]
Comment: The new preamble would be better if it mentioned section 207(2) of the Constitution, which states that the security services, including the Police Service, are subject to the authority of the Constitution and the Executive, and are subject to parliamentary oversight.
Replacing outdated terms: references to the Commissioner and Police Force will be replaced with references to the Commissioner-General and Police Service respectively.
Comment: The references to “Commissioner” were updated to “Commissioner-General” as long ago as 2011, and there is no need to do it again.
Updating provisions on the appointment and conditions of service of the Commissioner-General: Clause 3 and 4 of the Bill will bring section 5 and 6 of the Act into line with section 221 of the Constitution, which we have outlined above.
Requiring the Commissioner-General to comply with directives: Clauses 5 and 8 of the Bill will amend the Act to require the Commissioner-General to comply with directives from the Zimbabwe Human Rights Commission and the Zimbabwe Anti-Corruption Commission, and also with policy directives from the Minister in terms of section 221(4) of the Constitution, explained above.
Comment: Rather carelessly the Bill will leave untouched section 11 of the Act, which gives the President and the Minister power to issue policy directives. Equally carelessly, clause 7 of the Bill will amend section 12 of the Act to require the Commissioner-General to comply with directives from the Prosecutor-General rather than the Attorney-General. That same amendment was made in 2014 and should not be repeated.
Giving the PSC power to issue standing orders: Under clause 6 of the Bill, the PSC will do this on the advice of the Commissioner-General and with the approval of the Minister.
Comment: If the PSC is to do this “on the advice” of the Commissioner-General, the PSC will be a mere rubber-stamp with no independent power to issue standing orders. It would be better, and more in line with the Constitution, if the PSC were to exercise this function “after consultation with” the Commissioner-General, or even with his approval.
Giving the PSC power to appoint, promote and dismiss members of the Police Service: As we have said above, the Constitution vests this power in the Commission, and the Bill will amend the Act accordingly – but only to a limited extent:
· Commissioned officers [inspectors and more senior officers] will continue to be appointed and promoted by the President in terms of section 14 of the Act, on the advice of the Minister and the Commissioner-General but not the PSC. The same applies to the dismissal of officers under section 49 of the Act following their conviction for an offence: the PSC will not be involved. Nor will it be involved in the decision whether or not a member should be discharged for unsuitability or unfitness in terms of section 50 of the Act.
Comment: In all these cases it is unconstitutional to leave the PSC out of the decision-making process.
· Although section 18 of the Act will be amended to make the PSC responsible for making acting appointments to the Police Service, section 26 – which makes the Commissioner-General responsible for appointing ancillary members – will remain unchanged.
Comment: To deny the PSC a say in the appointment in the appointment of ancillary members is almost certainly unconstitutional.
· Discipline of members will continue to be the responsibility of the Commissioner-General rather than the PSC. This is probably the more efficient option but is questionable constitutionally since the PSC is mandated by section 223 of the Constitution to fix and regulate members’ conditions of service and to ensure the well-being, good administration and efficiency of the Police Service.
Removing the option for members to elect to be tried in magistrates court: The Bill will repeal section 32 of the Act, which allows members to elect to be tried in a magistrates court for disciplinary offences under the Act, rather than by a board of officers. Rather oddly, the Bill will leave untouched section 29A of the Act, which gives the High Court and magistrates courts jurisdiction to try disciplinary offences; if section 32 is removed from the Act there will be no indication of if, when, or how those courts can exercise their jurisdiction.
Comment: Removing members’ right to demand trial in a magistrates court is probably constitutional, in view of section 193 of the Constitution, which allows disciplinary offences to be dealt with by disciplinary tribunals such as a board of officers. Even though it may be constitutional, however, it is surely undesirable to deny members the right to choose an impartial court to hear their cases. In any event the inconsistency between repealing section 32 while leaving section 29 intact needs to be addressed.
Defects in the Bill
We have already noted some anomalies in the Bill relating to the respective functions of the PSC and the Commissioner-General in relation to the appointment, promotion and dismissal of members. There are a few more:
Terms of office of members of the PSC: Section 52 of the Act allows commissioners to be appointed for shorter periods than five years, and to be re-appointed indefinitely. This is contrary to section 320 of the Constitution, which states that commissioners must be appointed for five-year terms, renewable once only. The Bill will not alter section 52 of the Act.
Comment: The Bill must amend section 52 to remove the inconsistency.
Erroneous amendment of section 67 of the Act: Clause 19 of the Bill will amend section 67 of the Act, purportedly to align it with the Constitution, but the amendment is misconceived. Section 67 states that members who take action under a warrant – for example, searching premises under a search warrant – are not liable to aggrieved parties such as the owner of the premises if the warrant turns out to have been issued illegally. The section does not apply to actions for unlawful arrest or detention arising out of an illegally issued warrant of arrest or detention, so members are liable if they arrest or detain people under an illegal warrant. The Bill proposes to remove this exception so that members will be exempt from liability for action taken under any warrant. The amendment probably violates section 50(9) of the Constitution, which states that anyone who has been illegally arrested or detained is entitled to compensation from the public officer who is responsible for the arrest or detention and that the public officer can escape liability only if he or she acted reasonably and in good faith and without culpable ignorance or negligence.
Comment: Clause 19 should replace section 67 of the Act with a new section that is wholly consistent with the Constitution.
References to the old Constitution: The Bill will not update all references to provisions of the Lancaster House Constitution. For example, the definition of “Police Service Commission” in section 2 of the Act, refers to the old Constitution and so does section 54(1) of the Act.
Comment: these and other references to the old Constitution need to be updated.
General comments on the Bill
It will be apparent from our analysis of the Bill that the changes it proposes to make to the Act are mainly of detail and do not address fundamental issues such as the powers of police officers to deal with crime and maintain public order. That is understandable because the Police Act itself does not cover those issues: the powers of police officers in relation to crime control are contained in the Criminal Procedure and Evidence Act, as we pointed out above, and their powers to maintain public order are set out in the Maintenance of Public Order Act.
It will also be apparent that the Bill has not been carefully checked to ensure it addresses all instances of unconstitutionality in the Act. It leaves some gaps which need to be filled before the Act can be truly aligned with the Constitution. The joint parliamentary committee which is examining the Bill should urge the Minister and Parliament to fill the gaps. Members of the public can play their part by attending tomorrow’s public hearing and pressing for the necessary changes to be made to the Bill.