adminPaidamwoyo Mukumbiri : Correspondent
It is with deep sadness that I learnt of the passing on of Lyn Tarisai Chidawaya nee Amisi. Lyn passed on after allegedly being punched by a tout at Mbudzi roundabout as she tried to board a bus to South Africa. It is alleged that the touts were fighting to have her in their bus when one of them punched her in the stomach.Lyn who was seven months pregnant started complaining of abdominal pains and was later admitted at a hospital. Attempts to save her life including a caesarean section were futile and Lyn and the baby passed on.
Recently a Harare Girls High School student was run down by a commuter omnibus driver who was driving on the wrong lane. She died on the spot.
I for one fell victim to the abuse of touts in town. I was driving downtown along Mbuya Nehanda Street when one of the touts suddenly stopped.
Another one was screaming and pretended to be in pain. He said I had hit his colleague with my car. I was shocked and within seconds, I was surrounded by touts who claimed that I had hit their colleagues.
I argued and indicated that I was sure that I had not hit anyone.
The more I argued with them, the more noise they made thus drawing a lot of attention.
They hurled insults at me claiming that I was insensitive for not apologising for hitting their colleague.
They demanded an apology from me to which I refused because I had not done anything wrong.
The police came and I demanded that we go to the police station and I be charged with negligent driving if indeed I had hit him.
The police officer simply told me to drive off and ordered the touts to disperse as this was one of the touts’ games.
As I shared my story with colleagues, I was shocked to learn that it is a common practice in the downtown area for touts to harass motorists under the pretence that they have been hit.
Some have parted with their hard earned cash so that they could just proceed with their journey after touts block the road and claim money for being hit.
These are just a few cases of people who have fallen victims to the shenanigans of touts.
Vendors have also not been spared as some are run over or have their goods destroyed as the Harare Municipal Police play cat and mouse game with the touts.
To them it’s just a game yet to us it’s purely abuse. Being harassed by touts is not only a violation of human rights; it is a criminal offence.
It’s traumatic and nobody should experience that in a country that has a functioning police force.
Surely how many lives should be lost before the local authorities do their duties properly?
Amidst all this confusion, one would wonder if we have a law in Zimbabwe that protects people from violence in public spaces.
If indeed we have the law why does its long arm appear to be too short to reach the touts?
Violence in public spaces is a violation of human rights as contained in the different regional and international human rights instruments that Zimbabwe has ratified.
These rights include the right to life, right to dignity, right to protection of the law, right to health, and freedom from torture and inhuman degrading treatment.
The Constitution of Zimbabwe provides for the right to bodily integrity.
This right includes the freedom from all forms of violence whether from private and public sources. Violence in public spaces is therefore outlawed by the Constitution.
The Constitution also provides for the right to dignity and the right to freedom from cruel, inhuman or degrading punishment or treatment. A person’s right to dignity is violated as you are hassled and forced to board a bus that you do not want.
Similarly, the touts’ behaviour can be purely mental torture and is not allowed at law. Section 48 of the Constitution provides for everyone’s right to life.
It should be noted that the state has an obligation to protect citizens’ rights. This obligation is both positive and negative.
It is negative in the sense that the State should not take one’s life unless one is sentenced to death after committing specified offences like murder in aggravating circumstances.
The positive obligation denotes that the state should take positive steps to ensure that the right to life is protected and that people enjoy this right to the fullest.
The State’s lack of action towards the abuse that people face at the hands of touts is a violation of the right to life.
People are losing lives due to touts’ lawlessness like what happened to Lyn in this instance.
In addition to the Constitution, the Criminal Law Codification and Reform Act (the criminal code) outlines various offences that these touts commit in the process of their operations.
These offences can be utilised to protect people from violence in public spaces. The specific offence to be preferred depends on the actual conduct of the touts.
Indecent assault
There is a lot of indecent assault that takes place at bus terminuses as these touts fight for passengers. One woman actually testified to me that a tout once touched her buttocks as she was being pushed to get in the bus.
The criminal code defines indecent assault as any act involving physical contact that would be regarded by a reasonable person to be an indecent act other than sexual intercourse done with an indecent intent and with full knowledge that the other person has not consented to it or realising that there is real risk that the other person may not have consented to it.
In terms of section 65 of the criminal code the offender can be sentenced to pay a fine or imprisonment for a period of two years or both.
The criminal code further provides that for the purposes of determining the sentence to be imposed upon a person convicted of indecent assault the court shall have regard to the same factors that are considered in sentencing a person convicted of rape.
These factors are the age of the complainant and the accused’s as well, the degree of force used in committing the offence, the number of people who participated in the offence, the extent of physical and psychological injuries sustained by the complainant and whether or not a weapon was used.
Criminal insult
The act of shouting obscenities or derogatory words without any physical contact results in the perpetrator being charged with an offence of criminal insult.
Swearing at someone whether by words or conduct in a manner that seriously impairs the dignity of another person; or seriously invades the privacy of another person.
Criminal nuisance
Blocking of movement and making noise in the public sphere is a criminal nuisance.
It is a well known fact that touts block the roads and make a lot of noise. Just to give an example; the outer lane at Leopold Takawira at Parirenyatwa Group of Hospitals is always blocked by touts who are shouting soliciting for clients.
Intimidation
Intentionally threatening anyone by means of expressed or implied use of harm or compelling someone to do something which they are not legally obliged to do, or to refrain from doing something that they are legally entitled to do is an offence called intimidation.
This is what touts are good at. They threaten people to get into their buses by forcibly grabbing their luggage and in some cases lifting the person and putting him or her in their bus.
Kidnapping
This offence is committed when a person is deprived of the freedom or bodily movement.
Kidnapping is a serious offence as it does not have an option of a fine. A person convicted of kidnapping can be imprisoned for life.
The touts behaviour of literally forcing people to get in the buses and driving off results in deprivation of bodily movement and amounts to kidnapping.
Despite the fact that we have these offences in the criminal code, touts are let to go and do whatever they want with people in particular women.
They have turned our city upside down. They literally control what happens in the street.
It’s high time that the Ministry of Home Affairs starts strategising on how to remove this scourge from our society otherwise we will continue losing lives at the hands of these rowdy fellows.
The touts’ problem really needs collaboration from all sectors.
Commuter Transport Associations should train their conductors and drivers on how to treat their clients with dignity.
The City Council also should enforce their by-laws and impound all vehicles that operate at prohibited places.
We need lasting solutions not just the issuing of tickets as this is temporary and does not even deter the touts.
They need to be arrested and incarcerated.
Laws should be implemented so that our cities are safe.
Our city is so unsafe to the extent that you can’t even risky taking your children to town.
This touts crisis needs urgent attention lest we keep on losing lives.
I also urge my fellow citizens to be thy brother or sister’s keeper. We don’t need to turn a blind eye as we watch our fellow citizens being harassed by the touts.
Let’s exercise our rights as citizens and refuse to be forced to get into buses that we don’t want.
Let’s also board taxis at designated areas because touts come to load buses at the prohibited areas because we go there. Let us be responsible as well. Rights come with responsibilities.
Paidamwoyo Mukumbiri is a Legal Officer at the Zimbabwe Women’s Lawyers Association.
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