By Gift Phiri
Zimbabwean police using two-metre-long iron bars bristling with spikes to deflate vehicle tyres in an attempt to stop motorists alleged to have committed a traffic offence risk up to 10 years in jail, legal experts warned yesterday.
Zimbabwe in 2004 enacted a criminal law re-enacting Section 18 of the Public Order and Security Act (Posa) that holds everyone responsible for “obstructing or endangering free movement of persons or traffic,” according to its text.
Police spokesperson Charity Charamba said “I will get back to you” but had not done so at the time of going to Press.
Police chief Augustine Chihuri told the Transport parliamentary committee last week that spikes were lawful and help introduce discipline on some of the country’s most dangerous roads.
The police boss said last year alone, 36 police officers were injured, with three of them getting killed after being hit by motorists trying to escape arrest.
“Yes spikes are legal…People forget that as police, we need to be protected from criminals,” he said.
Chapter IV, Section 38 of the Criminal Law (Codification and Reform) Act, states: “Any person who — (a) throws or propels or prepares to throw or propel any missile, article or thing at any person, motor vehicle, boat, aircraft or building with the intention or realising that there is a real risk or possibility of causing damage or injury;
“or (b) without lawful excuse, the proof whereof lies on him or her, overturns or attempts to overturn any motor vehicle, boat or aircraft;
“or (c) otherwise than under and in accordance with any other enactment, leaves or places on or over any road anything with the intention or realising that there is a real risk or possibility of obstructing such road or endangering persons using it; shall be guilty of obstructing or endangering the free movement of persons or traffic and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding 10 years or both.”
Senior and founding partner at Kadzere, Hungwe & Mandevere Legal Practitioners, Kudzayi Kadzere, said the Criminal Code was unambiguous but enforcement has been full of ambiguity.
“Yes indeed that is correct: They try to justify it though through the Criminal Procedure and Evidence Act which allows police to use minimum force to effect an arrest.
“The difficulty with that is such force is excessive and should only be applied where an offence has been committed,” Kadzere said.
Learnmore Zuze, a law officer, said: “The use of the metal spike to deflate vehicle tyres owes its existence and continued use to the fact that no one has challenged its constitutionality.
“That a police officer is on national duty does not absolve them from being charged under the offence for it is unlawful to damage people’s vehicles.
“This is a crime clearly spelt out in the Criminal Law (Codification and Reform) Act,” he said, adding “the spike weapon is a throwback to medieval policing methods.”
Advocate Fadzayi Mahere said the use of spikes was not only an unreasonable use of force, but also a direct violation of Section 51 of the Constitution — which deals with human dignity.
“It is also a violation of the right under Section 52 to personal security and freedom from all form of violence from public sources,” she said.
“The same applies to high speed chases that result in the wholesale breach of traffic laws by the police, which in certain instances have led to the police running over pedestrians, causing injury.”
Last November, a minibus carrying 14 passengers rolled off the road in Harare’s Willowvale road when police threw spikes in front of it.
Ngoni Katsvairo, secretary of the Harare City Taxi Operators Association, poured scorn on the use of spikes.
Senior Africa researcher at the New York-based Human Rights Watch, Dewa Mavhinga, said spikes were illegal, but the bigger problem was that cops operate above the law, making it difficult for citizens to ensure justice and accountability where the police violate their rights.
He said Zimbabwe needs an Independent Police Investigations Directorate.
“Our constitution envisages such an independent complaints mechanism against the police and other security services but it has not yet been set up,” Mavhinga said.
Obert Gutu, senior and founding partner at Gutu & Chikowero Attorneys-at-Law, said the main challenge with the ZRP was that it has “unfortunately, degenerated into a thoroughly inefficient, incompetent, corrupt and heavily politicised outfit of the Zanu PF regime’s security apparatus.”
“Of course, the police are in gross violation of Section 38 of Chapter IV of the Criminal Code by randomly and unlawfully throwing spikes.
“Where in the civilised world have you seen a police force that moves around with spikes so that they can cause punctures to motorists’ vehicles?
“What the police should do is to lawfully enforce traffic regulations without conducting themselves like a rag-tag armed militia of a terrorist outfit,” Gutu, who is also MDC spokesperson, said.
“We know that the police are desperate to raise money from terrified and brutalised motorists as opposed to maintaining road safety.
“Corruption is rampant and police officers, particularly in the traffic department, brazenly and routinely demand bribes from motorists and other road users.” Daily News