By Daniel Nemukuyu
A Harare motorist yesterday approached the Constitutional Court challenging the traffic police’s practice of demanding spot fines.
Mr Andrew Makunura argues that the practice is unconstitutional and that the law enforcement agents must be ordered to stop this.
The debate was sparked by High Court Judge Justice Francis Bere, who recently made a judicial observation that police were forcing people to pay spot fines when there was a provision allowing motorists to pay at a later date or to deny the charges.
The case intensified with police spokesperson Chief Superintendent Paul Nyathi publicly slamming the judge, accusing him of interfering with police operations.
Chief Supt Nyathi urged motorists to continue paying spot fines and to ignore the judge’s remarks, which he dismissed as his personal opinion.
In Mr Makunura’s application, the Minister of Home Affairs, the Commissioner-General of Police, Constable Agrippa Chinyama and the Attorney-General were cited as respondents in their official capacities.
Zimbabwe Lawyers for Human Rights filed the application yesterday afternoon and the respondents are expected to file their opposing papers soon.
The application emanated from an incident of February 12 this year when Mr Makunura was arrested by Constable Chinyama along High Glen Road in Glen Norah at a roadblock.
When he was waved to stop, Cst Chinyama asked for a driver’s licence, which he was given.
The policeman checked around the vehicle before demanding a radio licence. Mr Makunura failed to produce the licence and the police demanded that he pay a spot fine.
He indicated that he had no $10 on his person but undertook to pay later at the police station but the policeman would have none of it.
They held on to his licence and began to deal with other motorists.
“After 45 minutes, or so, the third respondent (Cst Chinyama) returned and insisted that I should pay a fine of $10 for the radio licence,” he said.
After 1 hour 10 minutes of resistance, the policeman then asked him to visit Southerton Police Station to pay the fine in Room 11 within five hours the same day.
He did not release the driver’s licence though.
Mr Makunura argues that the actions of the police on that day were not justified at law.
“I am advised that there is no law, regulation or rule that permits officers under the command and direction of second respondent (Commissioner General of Police) to demand that I pay a fine on the spot.
“I aver that if third respondent had reasonable cause to believe that I was a (radio) listener and that I had failed to produce a licence, he was obliged to serve me with a notice in the prescribed form requiring me to produce the licence within seven days as prescribed in Section 38 D of the Broadcasting Services Act.
“I am further advised that Section 356 of the Criminal Procedure and Evidence Act does not authorise the police to demand payment of a fine on the spot,” he said.
Mr Makunura said by demanding payment of a fine, the police violated Section 69 (1) and (3) of the Constitution as they arrogated themselves to be the complainant, prosecutor, judge and executioner at once.
It was also submitted that the police violated Section 86 (3) (e) of the Constitution by demanding the fine without asking the motorist whether he was admitting or denying the charge.
By confiscating the driver’s licence until payment of the fine, Cst Chinyama allegedly violated Mr Chinyama’s right to freedom of movement as enshrined in Section 66 of the Constitution.
Mr Chinyama wants the highest court of the land to make a declaration that the police’s conduct was unconstitutional and to bar them from the practice. The Herald
