Police must be guided by own motto, law

Police must be guided by own motto, law

Chris Mhike

PRO LEGE, Pro Patria, Pro Populo, goes the Zimbabwe Republic Police (ZRP) latin language motto meaning: ‘for Law, for Country, and for The People.’ That is a deeply profound statement of undertaking on the part of that branch of the uniformed forces of Zimbabwe.
Of course, for a good part of the populo — the people of this nation, their own aspiration is to see the ZRP being transformed from the force that it is, and has been since independence, into being a service.
That is to say, from Police Force, to Police Service.
The ongoing debate about spot fines, re-kindled by Justice Francis Bere at the opening of the High Court (Masvingo Circuit) two weeks ago on February 9, 2015, has brought again into sharp focus — the legality of spot fines, and the character of the Police.
However, the law is often a complex and technical issue, as can be gleaned from the serious factual and legal errors that have been committed and communicated by certain non-lawyer politicians who have curiously attempted to rubbish authoritative pronouncements from judicial authorities, and reportage errors by certain sections of the media.
Since every citizen has a right to have a say on a matter as important as this one, and to ensure that all discussants are on the same kind of level platform of discourse, perhaps the debate must proceed not just in terms of ‘legality,’ in the context of our Constitution and subsidiary legislation; but also on the more-universal and less-technical level of ‘the acceptability of spot fines,’ in the context of the ZRP motto, and in terms of democratic principles.
The ‘acceptability’ factor is particularly important for the refinement of our democratic discourse, for democracy is — in the words of past American president Abraham Lincoln — government of the people, by the people, for the people. That concept gels in appositely with the ‘Pro Populo’ component of the ZRP motto.
The ZRP is the law enforcement arm of government. The police must therefore know and understand the law. Thereafter, application and enforcement must be strictly in terms of that law (pro-Lege), for the good of the country (pro-Patria), and to the satisfaction and benefit of the People (pro-Populo).  For all the people — rich and poor, indigenous and foreign, powerful or weak; black, white and all shades in-between – not just the political and economic elite.
Going back to the subject matter; Justice Bere factually stated in Masvingo that “currently there is no legal framework justifying the manner in which these collections are being done.  “There is no law which compels a motorist to deposit a fine with the police if he desires to challenge the alleged offence, but it looks like motorists are being forced to pay these fines … irrespective of their attitude to the charges.  Any attempt to refuse to pay is met by threats to have the vehicle impounded by the police.’’
When Judges make pronouncements in Courts of Law – whether the occasion is litigation-related adjudication, or some other official event like the opening of a legal year; they do so with a significant degree of judicial authority.  Judicial pronouncements in those instances may be categorised into two broad categories – ratio decidendi on the one hand, or obiter dictum on the other. Ratio decidendi means “the reason or rationale for a judicial decision”, and obiter dictum means “a judge’s expression of opinion, not necessarily regarded as binding or decisive.”
At that basic level of definition, perhaps the national police spokesperson Chief Superintendent Paul Nyathi was correct in describing Justice Bere’s pronouncements as amounting to “personal opinion” or obiter dictum.  But the spokesperson went too far, and off-side in suggesting that the Judge’s pronouncement would have no impact on the operations of traffic police.
Responding for and on behalf of the ZRP, to the Judge’s pertinent pronouncements, Nyathi said:  “Police wish to advise the public that Justice Bere is expressing his own personal opinion and nothing has changed in terms of the procedures which empower the ZRP to accept deposit fines – whether it is a criminal or traffic offence.”
He said “Justice Bere’s statement is not binding on police operations”.  Police failed to recognise that the Judge did more than express an opinion; he cited statutory authority and stated incontrovertible fact on the matter.  Indeed, whatever the law dictates and whatever judges and the courts say, ZRP officers could well proceed as they please.  But, by going against statutory and Judge-made law, police would be proceeding anti-lege, ‘against the law.’
Awfully lacking in the police statement are references to specific law in terms of which the ZRP has been forcing motorists to pay spot fines, on the threat of the impounding of vehicles. Police may certainly collect fines lawfully from willing motorists at the spot, but that money should be channelled to the Consolidated Revenue Fund (CRF). That the collected fines are “domiciled in an account at Commercial Bank of Zimbabwe (CBZ)” and that “the funds are audited and tabled before Parliament by the Comptroller and Auditor General,” as stated by Nyathi, is not helpful in explaining why the money is not channelled to the CRF, as constitutionally required in respect of all government revenues.  P.S, under the current Constitution, the “Comptroller and Auditor General” was replaced in 2013 with the Auditor-General.
While Section 356 of the Criminal Procedure and Evidence Act does permit the police “to accept fines not exceeding level three,” as rightly pointed out by Nyathi, he does not cite a section of any Zimbabwean law that authorizes police to force motorists to admit guilt, or permits the force to forcibly impound the vehicles of non-paying motorists.
“In fact, there is a national deposit fine schedule which was designed by the Ministry of Justice, Legal and Parliamentary Affairs and it is reviewed by the same Ministry from time to time,” argues the ZRP.  But Schedules, even when designed by the Justice Ministry or any other, are not legal until promulgation into law through placement of same into the Government Gazette as Acts of Parliament or as Statutory Instruments.
As has become customary with many State officials for years, “sanctions” are readily brought in as an excuse for governmental wrongs and failures. Nyathi says: “Police have strategies to modernise the issue of investigation techniques but this has been hampered by the issue of illegal sanctions and economic challenges being faced by our country.  We thought this is common knowledge to the public and even to judges.”
Please! The matter is simple.  Is the practice of forcing motorists to pay spot fines legal or illegal? Put differently, in terms of the ZRP motto — is that practice acceptable to, beneficial to, or popular with the people; or not.  For the majority of Zimbabweans, with or without sanctions, the clear answer, under the legal or non-legal variations is, NO!
Finally, the 2012 High Court (Bulawayo) decision, Zaine Babbage Vs State (Judgment No. HB157/12, Case No HCA 64/11) is relevant in determining the legality or otherwise, of the subject police practice.  The court declared in that case that:  “A police officer cannot and should not insist on a spot fine …”
In other words, a citizen may willingly pay a spot fine to a police officer.  But no-one should be put to the spot; or rather, forced to pay on the spot.  The collecting officer should thereafter transmit that money to the CRF, not a “CBZ account.”
It is also helpfully stated in that judgment that:  “The acts of any competent authority (ZRP included) must fall within the four corners of powers given to it by the legislature … this stands to reason that the Zimbabwe Republic Police has authority to assess fines on motorists if the said fines are in accordance with their regulations.”
Therefore, without citation of specific regulations and statutes that justify mandatory and highly unpopular spot fines, and retention of the collected money outside the Consolidated Fund; the inescapable conclusion has to be that the Police Force is legally wrong, also in terms  of the democratic preferences of The People.
On that path of non-compliance with law, and non-alignment with people expectations, the ZRP proceeds Anti-Lege, Anti-Patria, Anti-Populo.
Chris Mhike is a lawyer practicing in Harare.  He writes here in his personal capacity.

Connect With Us

Fingaz Polls

Should medical practisioners demand cash upfront from patients on medical aid?