Maximum Periods of Custody (Zimbabwe)
Criminal defence lawyers must know the maximum periods that the police can hold their clients after they have arrested them. They must note that there are special provisions for prolonged detention of persons who are charged with offences in the Ninth Schedule of CPEA.
Arrest with warrant
Where the person is arrested on the basis of an arrest warrant, he must be brought as soon as possible to a police station or a charge office unless the warrant specifically authorises that he be taken to some other place: s 34(3) CPEA
Thereafter he must be brought as soon as possible before a judicial officer upon the charge mentioned in the warrant: s 34(3) CPEA.
Arrest without warrant
Where a person is arrested without warrant he must be taken as soon as possible to a police station or a charge office and if he is not released, he may not be detained for more than forty-eight hours (or not more than ninety six hours if there is a holiday or a Sunday within the forty-eight hour period). However, the detention can be extended beyond this period if a judge, magistrate or justice of the peace issues a warrant for further detention: s 32(2) CPEA. The CPEA does not specify the duration of such a warrant.
In Makwakwa 1997 (2) ZLR 298 (H) the court observed that the Constitution requires that an arrested person be brought before a court without undue delay. This is the guiding principle in determining what power the police may have to detain a person before his first appearance in court. The fact, though, that the person arrested may be detained does not mean that he should be detained. Just as the exercise of the power to arrest is open to challenge, so the decision whether or not to hold him for the maximum period permissible under the Act or whether to permit his further detention without bringing him before a magistrate is likewise open to scrutiny. Delay in bringing a detained person before a magistrate will only be countenanced where that delay is excusable on some objective ground. The ground might relate to physical difficulties in presenting the person in a court, or it might relate to a legitimate, genuine and justifiable decision to use to the fullest extent the discretionary powers vested in the police by the law.
In the case of Nyamhoko & Ors v OC ZRP Manicaland Province & Ors HH-37-06 the applicants were arrested by the police on allegations of committing offences under the Public Order and Security Act. They were maltreated while in custody and denied access to their legal practitioners. State counsel who tried to intercede were threatened by the police and had to flee the district. The applicants sought a declaratur that their detention, which had been for more than 48 hours, was unlawful, as well as an order for the return of property taken from them. No warrant for further detention was shown to the court. The court held that where an applicant has been held beyond the 48 hour period, it is competent to declare the whole detention period illegal. Even assuming in favour of the respondents that somewhere in their offices warrants for further detention lay unattended, the facts before the court required that the detention be declared illegal.
The provision for obtaining a warrant for further detention is open to abuse as the police can obtain this warrant without even having to appear personally before a magistrate and without taking the prisoner before the magistrate by applying to a justice of the peace who is a police officer, or obtaining authorization for further detention from a magistrate. On occasions it has apparently been used as a device for keeping the prisoner incommunicado for extended periods without access to his lawyer or relatives and without access to the courts to apply for bail. If the police are using these provisions in an abusive fashion, an urgent application can be made to the High Court for a court order to oblige the police to take the arrested person before a court so that the case can be properly remanded and an application for bail can be made. Although the provisions are not entirely clear on this point, it was surely not envisaged that the 96 hour upper limit for bringing a person arrested without warrant before a court can be completely circumvented by relying upon the provisions relating to further detention. The police officer who has denied access and the Ministry of Home Affairs can be cited as respondents in this action.