Police officers violate people�s constitutional rights and cost the State millions in lawsuits

Owen Nsala | Wednesday June 7, 2017 18:10

It is worse to those of our citizens who do not have the benefit of legal counsel and even worse, for foreigners who are in some cases wrongly accused of deeds not done.

As recent as last week I was instructed to defend a man of Zimbabwean origin. The surrounding and prevailing circumstances were that he had boarded a vehicle from South Africa to Zimbabwe via Botswana. At the border he, together with the driver and two other passengers were randomly stopped and searched as is border and customs exercises. The driver, upon the search beginning ran off and the unsuspecting passengers remained behind for the routine search. Unbeknown to them, there was dagga in the trailer and for that reason they were arrested and detained, fair enough. This was in March 2017.

Upon their interrogation, it became pertinently clear that they were strangers to the driver and were oblivious of what was in the trailer save for their luggage to which they could only account. Further investigations led to the owner of the vehicle being brought in for questioning and his testimony was that he had leased the vehicle to someone else and that person had informed him he ran off at the border knowing he had dagga in the trailer. That was a telling statement and at that point any lingering doubts by the Police as to who the real culprit was must have been cleared. With evidence clearly exonerating the three arrested Zimbabweans, the Police proceeded with laying ridiculous charges of possession of dagga against the three. It is worthy of mention that one of the three accused was an old and frail looking 85-year-old who struggles to walk and his voice and tone lacked projections of a drug dealer.

Charges were laid against the three and from March 2017 until their release at my instance on June 2017, they toured the journey between prison and court with very little hope of freedom or at the least, an opportunity to answer to the flimsy charges as laid against them. Upon my intervention, the Police admitted forthwith that there really was no evidence to mount a sustainable charge and accepted a withdrawal of charges. It was not that I showed them any meaningful magic. That was an operational and known fact to them from the date of arrest and yet they continued with the persecution of the innocent people. If there had been no intervention of Counsel, what would have become of them?

There is another issue that is worthy of discussion. It is the concocted manner with which evidence is extracted from unsuspecting accused persons who end up writing confession statements on the disguise that it is their gateway to freedom. I have had countless testimonies from accused persons who inform me that they authored confession statements on the understanding they they awere exonerating themselves. The Police would use all forms of torture, compulsion and the threat to a denial of freedom to extol false information from those accused. Once armed with confession statements, they let the accused person go on the belief that they have done 80% of the investigation.

 On the strength of such confessions, and without proper legal counsel, a person is normally convicted for a wrong never committed. At trial it rarely becomes an issue whether the statement was made voluntarily and without compulsion. A lot of those wrongly convicted realise this after a hefty sentence has been passed and reality sinks in. This cannot be justice.

Furthermore, the right to legal representation, a constitutional right granted to all residents’ of this Republic is flouted at will by the Police. Many lawyers will tell you that the Police do not value or recognise that right upon arrest. Accused persons are told that they will meet their lawyers at Court and not during investigations. How often have lawyers been denied access to their clients on account that the person is still being investigated? How many lawyers have been fortunate to sit at the investigation table with the investigating officer and listen to the questions to guide his client? The Police go to the extent of threatening lawyers with a day in the holding cells. Those of timorous souls normally retreat, living client to the Police who then extract and solicit unlawful evidence from such unsuspecting accused persons.

Much as a balance must exist between one’s Constitutional rights and the State’s responsibility to do its  job in so far as fighting crime, it is important that in the exercise of such powers proper regard is had to the prevailing Constitutional rights. Investigations must be done and once complete, an arrest may ensue unless in circumstances where an urgent need exists for such detentions. The State is losing a lot of money from claims of unlawful detentions and malicious prosecution borne out of failure by the Police to conduct their investigations in a manner diligent enough to accept that no charges can be laid.