Moffat Mungazi
Trust Maanda
Legal Position
PERSONS that are arrested and detained have certain rights.
Section 50 of the Constitution provides those rights.
Those rights are further explained in the Criminal Procedure and Evidence Act (the Act).
The courts in Zimbabwe have pronounced upon those rights, and what amounts to inhuman and degrading treatment when it relates to conditions under which detained persons have been held.
Any person arrested and detained shall be accorded, by the person for the time being in charge of the place where he or she is being detained, the right to be visited by his or her relatives or spouse.
He or she can be seen by his or her doctor and legal practitioner.
He or she has a right to remain silent, and to be informed of this right, and of the consequences of exercising or not exercising this right, if there is reason to believe that he or she may not be aware of it.
The person for the time being in charge of the place where a person is being detained following his or her arrest, shall ensure that the conditions of detention are consistent with human dignity, including affording a reasonable opportunity for the detained person to engage in physical exercise.
A detained person has a right to wear clothing of his or her choice, unless the exercise of the right is likely to prejudice his or her health or the reasonable requirements of discipline in the place where he or she is detained.
If the clothing of his or her choice is required for the purposes of any investigation or inquiry, he or she must be provided with decent alternative clothing to wear.
Woman’s brassiere is a ‘necessary wearing apparel’.
A detained person must be provided, at State expense, with adequate accommodation; and adequate ablution facilities and other facilities for maintaining personal hygiene.
There should be provision of adequate nutrition; and appropriate reading material.
The police should also provide adequate medical treatment if required, and such other facilities as may be prescribed.
Any detention facilities that do not conform to these requirements amounts to inhuman and degrading treatment.
In Williams & Ors v Co-Ministers of Home Affairs & Ors SC 207/2011, the Supreme Court before it became the Constitutional Court, dealt with the issue of what constitutes inhuman or degrading treatment.
In Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC 145/04, the court declared that the applicants were subjected to inhuman and degrading treatment.
It found that the holding cells in which the applicants had been detained overnight at Highlands Police Station and Matapi Police Station, respectively, fell short of the minimum standards of decency.
The court said: “I have no doubt in my mind that the holding cell that the court inspected at Highlands Police Station, the same holding cell in which the Kachingwe was detained overnight, does not comply with elementary norms of human decency, let alone, comply with internationally accepted minimum standards. In particular, the failure: To screen the toilet facility from the rest of the cell to enable inmates to relieve themselves in private; To provide a toilet flushing mechanism from within the cell; To provide toilet paper; To provide a wash – basin; and To provide a sitting platform or bench; constitute inhuman and degrading treatment prohibited in terms of s 15(1) of the Constitution.”
In the Williams case, the court consequently ordered as follows: “The first and second respondents are directed to take all necessary steps and measures within their power to ensure that at Harare Central Police Station:
“The holding cells shall have clean and salubrious flushing toilets with toilet paper and a washing bowl.
‘‘The flushing toilets shall be cordoned off from the main cell to ensure privacy. A good standard of hygiene shall be maintained in the holding cells.
“Every person detained in police custody overnight shall be furnished with a clean mattress and adequate blankets. Adequate bathing facilities shall be provided for all persons detained in custody overnight.
“Every person detained shall have access at all times to wholesome drinking water from a source other than the tap above the toilet.
“Women detained in police custody shall be allowed to keep their undergarments including brassieres, and to wear suitable footwear.”
The Constitution of Zimbabwe and the Act elaborately provide for these rights.
The courts have interpreted them.
They are available to every person regardless of their status in society.
They protect the inherent dignity of every human being.
Every person should be acquainted with the meaning and content of these rights.
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.
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