By Mashudu Netsianda
THREE police officers manning a roadblock along the Harare-Masvingo road allegedly pulled out a firearm and threatened to shoot a 10-year-old farm girl together with her parents after the minor picked up their plastic bag containing “bribe” money hidden in a rubbish pit.
The trio allegedly pointed the firearm at the victims to instill fear in them and handcuffed them before threatening to assault them with a baton in an effort to recover their loot.
The three cops later appeared before a police tribunal and were convicted after a full trial in terms of the Police Act and each sentenced to 14 days imprisonment at the detention barracks.
Prior to the applicants being charged in terms of the Police Act, they had already been charged in terms of the Criminal Law (Codification and Reform) Act before the charges were withdrawn before a Harare magistrate due to lack of evidence.
This emerged when the three police officers, only identified as Assistant Inspector Mahleka, Sergeant Ndlovu and Constable Hamadziripi, through their lawyer Mr Norman Mugiya of Mugiya and Macharaga Law Chambers, filed an application at the Bulawayo High Court seeking an order nullifying their conviction and sentence.
They cited the trial officer, Superintendent Donald Robson and Police Commissioner General Godwin Matanga, as respondents.
Former High Court judge, Justice Francis Bere, now on the Supreme Court bench, dismissed their application and condemned their conduct.
“Disciplinary proceedings under section 35 of the Police Schedule to the Police Act are an essential aspect of maintaining discipline in the police force. Police officers must be reminded that just like any other employee are subject to disciplinary action by their superiors.
“The court cannot be used as a shield against impending disciplinary action and will only step in where there had been a clear violation of the police officer’s rights,” he said.
Justice Bere said evidence tendered before the disciplinary hearing suggested that it sustains a criminal conviction against the three cops.
“There is no sound reason why the criminal prosecution has not been pursued to finality. I strongly recommend that the Prosecutor-General revisit this case if it had been closed for lack of evidence. The evidence of criminal conduct is there in abundance,” he said.
Justice Bere said there was nothing wrong with a police officer being charged in terms of the criminal law and then being disciplined in terms of the Police Act.
“There is no double jeopardy or dual prosecution to talk about as the two processes are meant to achieve different results. The conduct exhibited by the applicants in this case must be condemned by all fair-minded people and it must continue to be exposed because shielding it will result in the creation of a rotten and corrupt police force, which is a serious threat to the maintenance of law and order in the country. Accordingly, the application is dismissed with costs,” ruled the judge.
The three police officers said they were not supposed to have been subjected to a disciplinary hearing after being tried in a fully fledged criminal trial, arguing that it was tantamount to double prosecution.
They further argued that in terms of the law, a single officer had no jurisdiction to try them by virtue of having been charged in terms of ordinary law on the same allegations.
However, the respondents through lawyers from the Civil Division in the Attorney-General’s Office, contended that the constitution fully recognised a court or tribunal that deals with cases under disciplinary law to the extent that the jurisdiction is necessary for the enforcement of discipline.
They argued that dual prosecution was permissible as it relates to the Police Act and criminal law arising from the same conduct.
According to court papers, it was stated that sometime in December 2013, the three police officers were assigned to man a roadblock near Manyame River along the Harare-Masvingo road.
Not far from where the three cops were manning their roadblock, the 10-year-old girl from nearby Gilstone Farm in Beatrice picked up a plastic bag at a dumpsite and took it home.
Upon opening the bag, the girl’s mother discovered that it contained money in several denominations of various currencies. The money was wrapped up separately in khaki and white paper.
It later turned out that the “parcel” which was picked by the girl had been hidden in the dumpsite by the three cops.
Upon discovering that their money was missing, the three police officers went to the farm where they allegedly pulled out their service rifle and threatened to shoot their suspects.
They allegedly handcuffed the girl and her parents and threatened to assault them with a baton stick in the event that the money was not recovered.
Out of fear, the suspects returned the money.
However, upon the three cops’ arrest, there were suspicions behind the possible origins of the money and how some security items in the form of Z65J documents went missing at their roadblock. The Chronicle