adminQhubani Moyo Correspondent
This is not a banana republic and the police cannot treat the country as such by defying the law every day for the past three years and when the judges point to them where they are behaving unlawfully, they respond like bullies.
Justice Francis Bere stirred a hornet’s nest when he pronounced that spot fines by the Zimbabwe Republic Police were illegal.
The pronouncement was met with jubilation by the motoring public given the amount of abuse they have endured at the hands of the law enforcement agencies whenever they failed to pay the spot fines.
The police, its Chief Superintendent Paul Nyathi, came out guns blazing, telling the country and the world that Justice Bere was just expressing his personal opinion and therefore the pronouncement by the learned judge was not a legal position and therefore not binding on the police.
The police spokesman urged and persuaded that the motoring public should continue to co-operate with the police force and pay the spot fines like they have always done.
His appeal on the need for continued co-operation by the citizenry suggested that there was a possibility of defiance of the law by the citizens on the strength of a “wrong legal” pronouncement by a sworn judge of the High Court of Zimbabwe.
Yet in reality, and if the truth be told, the motoring public have not had any option but to submit grudgingly to police demands on spot fines because in most cases the police are not willing to co-operate or listen to the motoring public’s problems and reasons for inability to make spot fine payments.
The police have made it a hobby and habit and priority to ensure that spot fine payments are at the core of their operations than law enforcement.
This inevitably has created a wrong picture about the force as the citizenry view them more as working to fulfil their own interests than citizens’ protection.
That image and lack of confidence on the country’s police force is not healthy and defies the very heart and foundations of the roles and responsibilities of the police force.
It is clearly an issue that needs urgent attention because issues of image and confidence are fundamental for public institutions especially those tasked with enforcement of law and order. A police force which is viewed in the public as more designed to fleece the public than protect it is not good at all.
While it is reasonably understood that the pronouncements by Justice Bere were made while opening the High Court legal year and not as a court judgment and therefore not a legal position, it is important to note that there has been pronouncement made on the issue before and the police have continuously and knowingly violated the High Court judgment.
Given the rash statement in the media and acres of space bought in the media to “clarify” the position, one can have no doubt that the police actually knew and have in their files the judgment made in 2012 by Justice Maphios Cheda in the case between Bulawayo businessman Zane Babbage Vs the State.
In his ruling, Justice Cheda said the police cannot legally demand a spot fine. He ruled that a motorist should be given a ticket and reasonable time within which to pay the fine in accordance with their regulations unless if the offender elects to pay the fine on the spot.
The learned Judge did however indicate that the police were empowered to use their powers as they deemed fit depending on the motorist if he or she is a foreigner or if he or she had no acceptable identification which will in turn make it difficult for him to be traced in the event of a his/her default. He went further to state that “the police can’t and should not insist on a spot fine on the basis that he is not in possession of a ticket book which ticket book is necessary administrative tool for executing his duties”.
The reality is that the police did not challenge this ruling therefore have been wrongfully forcing the motoring public to pay spot fines.
It is therefore suspicious that the police want us to believe that Justice Bere is expressing a personal opinion and thus tantamount to interfering with work of the police when there is judgment on the matter.
The attempt to provide an excuse that Cabinet approved the justification by Ministry of Home Affairs is ridiculous given that there are no known statutory instruments to support that position.
Cabinet deliberates on so many things and gets justifications from various ministries but in the absence of supporting statutory instruments for enforcement those remain nothing but deliberations.
The correct position is that the collection of fines from the motoring public should be in terms of the Road Traffic Act and the Criminal Procedure and Evidence Act which in its current form insist that the motorist should be given seven days to pay a fine at a police station. However, in a clear case of dereliction of duty, and abuse of powers and unlawful conduct, the police have been on a spree in which if a motorist fails to pay they confiscate your license, car keys and detain you in the roadside until you are subdued to admit to a payment of a fine to avoid the unlawful detention or sometimes smashing your windscreen.
This is without doubt wrong and unprofessional policing.
This is not the first time that the police have been on the spotlight regarding the issue of spot fines.
Sometime last year, they went on an all-out offensive against the statements by the Commissioner General of Zimra Gershem Pasi in Parliament that they were collecting a huge figure of about $3-7 million per month from roadblocks and that the money was susceptible to abuse in the hands of law enforcement agents. The police claimed they never exceeded $1 million in collection every month but up to now despite their claim that the money is well accounted for and banked at a local bank, there has been no public declaration on how much exactly they collect.
Rumour has it that each police station is given a target of how much to collect a day, a very unfortunate situation for an agency whose role is law enforcement and not revenue collection. While the circumstance in which the police were authorised to make retention of some of their collections to assist in their operations, they need not abuse that privilege to abdicate their roles and duties of law enforcement.
They also need not abuse that privilege and use their powers to extort the motoring public who expect their protection.
This could be a time for reflection and review of the police in line with the new constitution and new national priorities.
If one of our key priorities is to establish strong national institutions that are able to effectively deliver services to the public it could be time to review the old policies like the one allowing some government agencies to retain a position of what they collect.
There could be a need to ensure that all the collections are deposited with the necessary revenue collection authorities and no government department or agency should be allowed to retain collections. Disbursement should be done in a proper manner in line with the constitution’s provisions on management of public finances.
To allow some government departments to collect and retain some money for their services would not assist build national institutions that are strong; it only assists in exacerbating selfish approaches to execution of duties in a manner that does not assist government efforts of economic growth and service delivery.
What must be understood is that Government should win public confidence by the way they are running the affairs of the country and one way of doing it is to be seen to be doing things according to the law.
It is thus tantamount to shooting itself on the foot for the Government to talk about a new way of doing things in a productive way yet at the same time allow for key national institutions like the police to do things outside the law.
The new order of doing things in line with the public administration provisions of Zim-Asset is to ensure that whatever is done is done in a manner that ensures that government is accountable to the citizenry.
There is no way the Government will have the respect of the citizenry and their confidence if it allows the law enforcement agencies to willy nilly break the law like they have been doing since the Justice Cheda Judgment of 2012.
There is need to return to the basics and respect the institutions we created for ourselves.
If for any reason there is a strong feeling in the government or in the police that the pay-later fine system will cripple their operations they know what legal position to follow.
They cannot just do things outside the law; they have to ensure that the necessary legal instruments are in place for enforcement of such actions.
Furthermore, given the government’s desire to ensure efficient public administration and accountability of every department, the police have to make do with what is available and conform to the law in terms of revenue collection and also follow normal channels in requesting disbursement from Treasury like all other government departments.
This is not a banana republic and the police cannot treat the country as such by defying the law everyday for the past three years and when the judges point out to them where they are behaving unlawfully they respond like bullies.
In as far as they have the responsibilities to enforce the laws, the police should also understand and respect that the judges are there to interpret the laws.
And when judges do as what Justice Bere has done, the police should be humble enough to accept the correction and make an “admission of guilty”.
Dr Qhubani Moyo is a policy and political analyst from Bulawayo East Constituency. He is contactable on [email protected]
Online Reporter