Lawful Arrest (Zimbabwe)
Defence lawyers must know what constitutes a lawful arrest so that they can take appropriate action where their clients have been unlawfully arrested and detained.
In cases of arrest without warrant, a person can only be lawfully arrested in connection with a criminal offence if the person arresting him has a reasonable suspicion that the person has committed or is about to commit a criminal offence. Where an arrest warrant has been obtained, however, by one police officer, it can be lawfully executed by another officer, even though the second officer may not himself know the basis upon which the warrant was issued and thus cannot say that he reasonably suspected that the person he was arresting had committed an offence. This applies whether the arrest was on the basis of a warrant of arrest or was done without warrant.
The circumstances in which a person may lawfully be arrested without warrant are set out in s 25 CPEA. They include cases where the person arrested has committed or has attempted to commit a crime in the presence of the peace officer arresting him and where the peace officer has reasonable grounds for suspecting that the person has committed any of the offences contained in the First Schedule. The offences in the First Schedule are common law offences, except for certain offences which are excluded such as bigamy, and statutory offences where the maximum punishment is imprisonment for more than six months without the option of a fine.
If the person making an arrest without warrant does not have a reasonable suspicion that a crime has or is about to be committed, the arrest is illegal and the lawyer representing the arrested person can apply to the High Court for the immediate release of that person. See s 13(2)(e) of the Constitution of Zimbabwe. The arresting officer and the Ministry of Home Affairs should be cited as the respondents.
Reasonable suspicion is not the same as proof beyond reasonable doubt. What is required is that the person making the arrest must have information on the basis of which a reasonable person would hold a suspicion that the person to be arrested had committed or was about to commit the criminal offence: Purcell-Gilpin 1971 (1) RLR 241; Miller 1973 (2) RLR 387; Moll v Commissioner of Police & Ors 1973 (1) ZLR 234 (H); Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H); Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S); Gwenyure v Minister of Home Affairs HH-702-87; Attorney-General v Blumears 1991 (1) ZLR 118 (S); Feldman v Minister of Home Affairs S-210-92; Gous v Minister of Home Affairs & Ors HH-171-92; Muzabazi v Jabawu & Ors HH-234-92
Even if there was reasonable suspicion, the police have the discretion whether or not to arrest. If, in the circumstances, the arrest was not justified the arrest will still be unlawful and the arrested person will be entitled to claim delictual damages. The exercise of this discretion to arrest may be interfered with when exercised grossly unreasonably. In Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) it was held, that although the police officer was authorised to arrest the appellant, he had a discretion as to whether to do so or not; the power of arrest is not intended always, or even ordinarily, to be exercised. Further, the principles applicable to administrative law applied: that the court would have to find that the exercise of the discretion was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. Some of the considerations to be taken into account in determining whether an arrest is open to challenge are the possibility of escape, the prevention of further crime and the obstruction of police enquiries. On none of these grounds could the exercise of the discretion be justified. In Paradza v Minister of Justice & Ors S-46-03 the Supreme Court held that there had been an abuse of discretion which was unconstitutional on the basis that it violated ss 13 and 18 of the constitution- right to liberty and to protection of the law. See also Botha v Zvada & Anor 1997 (1) ZLR 415 (S); Nyatanga v Mlambo NO & Ors HH-85-03.
The onus is upon the person making the arrest to prove that the arrest was lawfully justified: Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S).
Arrest warrants are issued in terms of s 33 CPEA. The person applying for the warrant of arrest must state that from the information available to him, he has reasonable grounds for suspecting that the person he wishes to arrest has committed a certain specified offence.