Explaining the protection of the right to liberty

 

Trust Maanda
Legal Position

 

SECTION 49 of the Constitution of Zimbabwe provides for the protection of the right to personal liberty.

That right cannot be deprived arbitrarily.

Section 50 (6) of the Constitution provides that any person who is detained pending trial for an alleged offence, and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions.

Those reasonable conditions must be to ensure that after being released, the person must attend trial; do not interfere with the evidence to be given at the trial; and do not commit any other offence before the trial begins.

These conditions are the factors considered when bail is being applied for.

The release of a person on condition that they will stand trial will be to curtail abscondment.

The court usually imposes conditions such as depositing a certain amount of money for bail with the clerk of court.

This will be security for the person not to abscond.

 

Depending on his or her means, the court may order that they deposit title deeds to a house with the clerk of court.

If the person is a flight risk, the court may impose a condition that he or she deposits their travel document with the clerk of court.

 

Of course, there are others who flee by skipping borders, but the idea is to curtail as much as possible the risk of fleeing the country and not stand trial.

The court may impose a condition that a person must report to the police a certain number of days per week or per month.

 

Another condition may be of being ordered to continue residing at the given address.

 

The court may impose any conditions it deems necessary.

Section 50(7) of the Constitution provides for the right of any person who has reasonable grounds to believe that another person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, to approach the High Court for an order of habeas corpus.

A harbeas corpus order is an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed.

 

This order is when a person is detained illegally, and should be brought for the legality or otherwise of the detention to be ascertained by the courts.

 

This is usually where a person is detained by the police, prison officers, immigration officers or other persons doing so illegally.

The detention must be illegal for a writ of harbeas corpus to be granted.

In Clement Kwami Adzakey Versus The Principal Director Of Immigration And Minister Of Home Affairs 602/16, a Ghanaian citizen was detained by the Immigration Department for not having a permit to remain in Zimbabwe.

He applied for writ of harbeas corpus, and the court found that he was illegally in the country, and was properly held in custody.

The court said: “Thus despite the spirited and admirably strenuous attempts by the applicant’s counsel to convince me that the applicant has a prima facie right to the relief of habeas corpus, I find that a case for such relief has not been made up. Accordingly, the application is dismissed.”

Any person who has reasonable grounds to believe that another person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, can approach the High Court for an order declaring the detention to be illegal and ordering the detained person’s prompt release; and the High Court may make whatever order is appropriate in the circumstances.

The Constitution provides that an arrest or detention which contravenes Section 50 of the Constitution, or in which the conditions set out in that section are not met, is illegal.

In order to further protect the right to liberty, the Constitution provides further that any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention.

That right to claim compensation does not lie against a judicial officer acting in a judicial capacity reasonably and in good faith. In other words, where a judge or magistrate order a person’s detention, as long as they do so in the exercise of their duties in good faith, they cannot be faulted.

The law does not protect them where they abuse their powers by ordering arrest or detention of a person.

 

The law also protects from liability any other public officer acting reasonably, and in good faith, and without culpable ignorance or negligence.

It is usually the police who are sued for damages for unlawful arrest and detention.

 

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.