When a teenage girl was asked by a national newspaper what job she aspired to do after completing high school, she did not choose one of the professions that are traditionally favoured by most students – finance, law, medicine or engineering. No, her wish was to join the police service. Not just the police service, though. She qualified her answer by indicating her preference for a career in the traffic division of the police service. Not the homicide or serious fraud divisions, departments that might demand and test one's investigative acumen, no. She preferred to be stationed at one of the country's numerous roadblocks dotted around Zimbabwe's decaying road network.
It was a telling response which said as much about the country's police service and the moral constitution of a generation that has gone through its formative years in an era contaminated by the scourge of corruption.
The Zimbabwe Republic Police (ZRP), the national police service, is not usually the first choice on the list of best employers. But the young student’s preference is a reflection of the times. While the official wages in the police service are terribly low and therefore certainly not the attraction, the ZRP and its officers are notoriously corrupt. With a place in the traffic division, one is guaranteed a steady stream of income, thanks to the abundance of rent-seeking opportunities on offer. The traffic division of the ZRP has gained an unhealthy reputation as a haven of egregious bribery and corruption. Those vast rent-seeking opportunities would probably explain the young girl's career choice. Indeed, she elaborated her answer by stating that there was a lot of money in the traffic division.
This is why the major arterial roads in Zimbabwe are a popular place of work for members of the ZRP. Police road-blocks are a familiar feature on most roads within and between cities. During the 400 kilometre trip between Harare and Bulawayo one is guaranteed to encounter around ten road-blocks, sometimes more. There is usually one before and another after every town along the way.
On some occasions, citizens say, it is so absurd as one can encounter two roadblocks within a one kilometre stretch of the road. Roadblocks are so commonplace and inconvenient that most people regard police as a real menace more than they are a source of protection. In a recent survey, one of the things tourists complained about the most were the roadblocks and associated police harassment. Even the Speaker of Parliament, Jacob Mudenda, echoed similar sentiments last year when he addressed a business forum in Victoria Falls, the country’s premier tourist resort. Tourism Minister, Walter Mzembi is among the voices complaining about the roadblocks’ menace. “Remove roadblocks from our roads and put security checkpoints. If you say you have a roadblock, what are you blocking? They are blocking commerce. They are blocking economic activity,” said Mzembi, speaking to the Financial Gazette, a business weekly.
ZRP's cash cow
The primary driver of these numerous roadblocks is not health and safety but economics. The ZRP has a direct incentive to erect as many roadblocks as possible on the roads because fining motorists has become a lucrative commercial enterprise. By an agreement with the national treasury, the ZRP retains the revenue from the fines and uses this revenue to support its operations, including wages for new recruits. The traffic division is therefore the commercial arm of the ZRP and fines are effectively taxes levied by the ZRP under the guise of policing.
According to Newsday, a private daily, Melusi Matshiya, the Permanent Secretary for Home Affairs told the Parliamentary Portfolio Committee on Home Affairs that the ZRP collects nearly $60 million a year in spot fines. Also according to the same paper, the Zimbabwe Revenue Authority, the tax collector, revealed in 2014 that the ZRP was collecting between $3million and 7 million in spot fines. A police spokesperson who denied those figures nevertheless claimed the ZRP was retaining $1 million in spot fines revenue each month. Whatever the correct figure, it is clear that spot fines collected at road blocks are an important source of revenue for the ZRP.
As a result, there is really no incentive to stop this tax and source of revenue, upon which the ZRP has become so dependent both for its operations and as a source of personal income for its officers. So rampant and well known is the bribery and corruption that it might be argued the authorities condone it as a form of compensation for the lowly paid officers. But it comes at great cost to Zimbabwe's reputation, which scores badly on the World Bank's Doing Business index.
Escalation of risk
Nevertheless, the problem goes deeper as most motorists and other road-users would testify. First, it means the police often resort to unorthodox tactics in their bid to extract fines from motorists. They will invoke all manner of rules and look for a defect on the car, just to make sure they find fault and impose a fine. Sometimes, police officers are armed with spikes, which they throw in front of moving vehicles in a bid to stop them. On other occasions, police officers use blunt instruments to strike the windscreens of moving vehicles. Some officers risk their own lives by jumping in front of or clinging on to moving vehicles.
This leads to defensive and often dangerous behaviour on the part of terrorised motorists. In the case of public transport operators, this raises risk for passengers, who are caught in between the daily battles with the police. In a bid to avoid police roadblocks, motorists improvise and create new routes, often cutting across residential neighbourhoods, placing lives of residents at risk. In most cases, they are forced to compromise their ethics and pay bribes to police officers. This is the case for most public transport operators who have to use the same routes several times a day – paying a bribe once a day saves might buy them immunity for the rest of the day. This essentially means police fines are a daily tax which public transport operators must pay, the cost of which is eventually shifted to consumers.
The culture of bribery means transport operators with genuinely unroadworthy vehicles also get through the net, as long as they can pay the bribe. The end result is that there is no real incentive for operators to improve safety standards – why should they when they can just pay a bribe? In effect, instead of promoting safety on the roads, police behaviour is actually raising the levels of risk and danger to other road-users.
Justice Bere’s intervention
All this has been happening for a number of years. However, two years ago, a High Court judge, Justice Francis Bere issued a stern rebuke of the police when he gave a speech at the official opening of the Legal Year in Masvingo Province. He made it clear that the manner in which police were behaving and in particular, the way in which they were charging and demanding spot fines from motorists was illegal.
At the time, the ZRP was defensive. It dismissed Justice Bere’s view as “a personal opinion” which they had no obligation to follow. They have defended their practice of compelling motorists to pay fines on the spot for traffic offences. Whilst acknowledging that the judge’s comments may have legal merit, the then Minister of Information and Publicity, Professor Jonathan Moyo chastised Justice Bere for making “pre-mature” pronouncements on an issue outside a court of law as if he were delivering a judgment.
Babbage v The State
But this criticism was unwarranted and unfair on the judge because his comments were neither premature nor new. Justice Bere was merely confirming what A High Court judge had already stated in an earlier case. In 2012, Justice Cheda captured the correct position on the law regarding spot fines case. In Zaine Babbage v The State (HB157/12), Justice Cheda clearly stated that when a ticket has been issued by police, an alleged offender must be given a reasonable period within which to pay the fine. In other words, there is no rule compelling the offender to pay the fine on the spot. The judge made it clear that a police officer must not insist on the immediate payment of a spot fine simply because he does not have the necessary ticket book to carry out his function. The judge found that there may be limited circumstances in which the police is entitled to use its discretion to collect the fine on the spot such as were the alleged offender is a foreigner or where the motorist does not have sufficient documentation to trace him for purposes of ensuring payment.
Instead of taking heed of the judicial comments made by Justice Cheda, both the government and the ZRP simply ignored them. They were inconvenient comments which stood in the way of their revenue-generating project. The Government policy by which these revenue-collecting agencies keep what they collect for their own use, without accounting to the national treasury is, of course, a national scandal.
When I wrote about this back in 2015, I pointed out that the whole regime of spot fines was unconstitutional for a number of reasons. I explained that it violated sections 69 and 86(3) of the new Constitution. Section 69 protects the right to a fair hearing before an independent and impartial court within a reasonable time. Levying spot fines and demanding that they be paid on the spot made the police both judge and jury in their own cause. It also violated section 69(3) which provides for the right of access to court for the resolution of any dispute. If a motorist disputed the charge being made by a police office, he has every right to go to court for a judicial resolution of the dispute. The right to a fair trial is one of the rights that are specially protected under s. 86(3) which states that this special class of rights shall not be limited under any law. Since spot fines are a limitation on the right to a fair trial, they are plainly unconstitutional.
At the time, I argued that “seeing that the police are unwilling to budge and that Government does not seem to be in a mood to encourage them to comply with the law, the best course of action would be for a member or members of the public to bring a specific legal challenge before a court of law.”
The Makunura case
Thankfully, one motorist took up the call in February 2015 after he was stopped by police who demanded a spot fine and he challenged it at the High Court. It has taken two years to reach a decision, but last month, High Court judge, Justice Esther Muremba delivered the all-important decision which has brought much relief to most motorists.
The facts of the case are simple. On the morning of 12 February 2015, as he was driving along High Glen Road, Mr Makunura was stopped by police at a road-block. The officer levied a spot fine of $10 for the alleged offence of not having a listener’s licence for his car radio. Makunura did not have the money to pay. He was detained on the side of the road for a while until it became apparent that he would not pay. He was then allowed to go but the police officer confiscated and retained his driver’s licence. Makunura challenged the constitutionality of the police's conduct. Since the matter raised a factual dispute which needed resolution by trial, it was brought before the High Court. It is a sign of the slow pace of the wheels of justice in Zimbabwe that such a matter took two years before judgment was delivered.
At trial, it became apparent that the police officers were not telling the truth. Justice Muremba remarked that the police officers “were not being truthful with the court. They were trying to build a defence to the plaintiff’s claim.” The judge found that the police officer’s were inconsistent and lacked credibility. The judgement is a severe embarrassment for and indictment on the ZRP, given the judicial rebuke directed at its officers who essentially connived to lie to the court. Elsewhere such conduct would have resulted in serious consequences for police officers who occupy a position of trust and officers of the law are supposed to assist the court rather than lie to it as the two officers did. But the ZRP has set a very low bar of oral and ethical standards that such officers are probably back at the roadblocks even after such a damning judgment.
In the Makunura case, the judge was called upon to make a decision on the legality of demanding payment of spot fines at roadblocks and consequently, the detention of motorists and confiscation of licences to compel them to make payment. Makunura argued that the tactics used by police at roadblocks violated provisions of the Declaration of Rights in the Constitution and were therefore unlawful. Makunura argued that the police had infringed the following constitutional provisions: section 49 which guarantees the right to liberty, section 66 which protects freedom of movement, section 69 which protects the right to a fair hearing before an independent and impartial court, section 86(3) which strictly prohibits any limitations on the right to a fair hearing and section 71 which protects the right to private property.
Interestingly, both the Minister of Home Affairs and Commissioner General of the ZRP admitted that the confiscation of drivers’ licences at roadblocks and demanding the payment of spot fines violated the Constitution. This was an important admission demonstrating that police conduct at roadblocks is unconstitutional and illegal. Yet despite these admissions, and in total disregard of the law, the two most senior persons overseeing the police service have not directed police officers to stop their illegal conduct.
Although the government and police admitted to the unconstitutionality of their conduct, the judge nevertheless decided to delve into the substance of the allegations.
Law of spot fines
As Justice Muremba pointed out, the law of payment of spot fines is governed by section 356 of the Criminal Procedure and Evidence Act. In terms of this provision, a person who is accused of a minor offence is at liberty to admit to the offence and to pay the fine to a police officer. This means the accused person will not be required to appear in court to answer to a charge once they have admitted and paid the fine. However, if they dispute the offence the accused person must appear in court to respond to the charges. As the judge stated, “The choice is theirs.” The provision allows the quick disposal of cases in which persons are accuse of committing minor offences which do not warrant imprisonment or a fine exceeding level three. If two people fight in the street, they might be charged with common assault and if they admit to the charge they could pay a fine to the police. Likewise, if a person is drunk and disorderly, he might be fined by the police.
This provision also covers minor traffic offences which is why police officers are authorised to accept fines from motorists at roadblocks. However, as the judge stated, this is only “if motorists are admitting to the offences and are willing to pay the fine to save themselves from the trouble of having to pay the fine later or from having to appear in court on a subsequent date to answer to the charges that they are already admitting to.”
In other words, the motorists are under no legal obligation to pay a fine on the spot. As the judge clearly stated, “What is illegal is for police officers at roadblocks to force motorists to pay spot fines against their will.” Justice Muremba cited with approval the judgment of Justice Cheda in the 2012 case of Babbage v The State HB 157/12 in which he stated that the correct procedure is that “motorists should be issued with tickets and given reasonable time within which to pay the fine unless the said motorist elects to pay the fine on the spot”.
As to what should happen at roadblocks, Justice Muremba was very clear and for the avoidance of doubt, it is only fitting to quote her verbatim:
“Motorists should only pay fines on the spot if they are admitting to the offence and if they elect to make payment on the spot. If they are admitting to the offence, but do not have the money for the fine they should be issued with tickets like the form 265 which give them reasonable time within which to pay the fine. If they are disputing the offence they should be issued with tickets or have dockets opened and taken to court as they have a right to a fair hearing before an independent and impartial court. The court will determine whether they are guilty or not.”
This is the law. If a motorist is stopped by a police officer and charged with a traffic offence, they have the liberty to make an admission or to challenge the charge. But even if they admit to the charge, there is no obligation to make payment on the spot. The motorist can be given a ticket in order to pay later. Most motorists are unaware of this. Instead, they are detained for long periods at roadblocks if they challenge the charge or if they do not have the money. This is illegal. Police should issue tickets and the motorist has an option to pay later or to challenge the decision in court. Police do not want the matters ending up in court. They would be too many and that would be an administrative burden. But the corollary is that they readily mount roadblocks and impose often unnecessary penalties precisely because they know that most matters do not end up in court. They would curtail their behavior if they knew there is an impartial court which will decide on the matters.
No right to confiscate driver’s licence
Justice Muremba was also emphatic on the issue of confiscating the drivers’ licence. The police had already conceded that they had no power to confiscate licences. The judge made is clear that confiscating the driver’s licence was unlawful. She reiterated in her judgment:
“there is no law which allows the police to confiscate the drivers’ licences of motorists in order to compel them to pay spot fines. Compelling motorists who are disputing the offence to pay fines against their will infringes their right to a fair hearing before an independent and impartial court. It means that they are arrested by the police, tried by the police, convicted by the police and sentenced by the police without being given an opportunity to present their case or their side of the story to a person who has no interest in the matter and is therefore not biased. The police cannot be the judge and the jury in a matter they have an interest in if a motorist is disputing the offence.”
This was a clear and emphatic statement of the constitutional right to a fair hearing and that confiscating a driver’s licence amounts to a violation of the constitutional right to a fair hearing, a right that is stated in absolute terms and from which there can be no derogation.
It was odd therefore that having stated this so clearly, when addressing the question as to whether the right to a fair hearing under section 69 had been infringed the judge went on to hold that it had not been infringed. Her reasoning was that since the motorist was not denying the offence, but was merely short of money to pay, the issue was not over his right to a fair hearing or access to court. Yet this appears to contradict her earlier finding that the confiscation of his licence was illegal and an attempt to compel him to pay the spot fine. The fact of the matter is that by confiscating his licence without giving him a fair hearing, the police had acted as prosecutor, judge and jury and therefore breached his right to a fair hearing. The judge ought to have found an infringement of the right to a fair hearing.
Right to liberty
The judge also found that by detaining the motorist at the roadblock the police had unlawfully violated his constitutional right to liberty as provided for under section 49 (1) (b) of the Constitution. This provision states as follows:
“Every person has the right to personal liberty which includes the right not to be deprived of their liberty arbitrarily or without just cause”.
The judge found that the deprivation of personal liberty was arbitrary and without just cause. The fact that the police did not have the relevant forms to issue a ticket at the roadblock was not the motorist’s fault.
Although the order was specific to the matter, a general point can be drawn from the judgment to the effect that if a motorist is detained at a roadblock, that would be a violation of the right to liberty and therefore illegal.
Freedom of Movement
However, the judge did not accept the argument that the motorist’s freedom of movement had been violated. Section 66 of the Constitution states that:
“Every Zimbabwean citizen and everyone else who is legally in Zimbabwe has the right to move freely within Zimbabwe.”
Clearly after finding that the motorist had been unlawfully detained at the roadblock, it should have followed that his freedom of movement had been violated. Deprivation of liberty means the motorist and his passengers could not move away from the roadblock until the police officer allowed them to leave. Indeed, the judge had found that the motorist and his wife had been late for work as a result of the illegal detention. Their children had also been late for school. Yet the judge held that she did not “see how the detention of the plaintiff or the demand for a spot fine by the third defendant abrogated the plaintiffs right to freedom of movement. The plaintiff was only detained for slightly over an hour at a roadblock, but this did not infringe on his right to freedom of movement.”
On this point, with respect, the judge erred. Two of the natural consequences of illegal detention are deprivation of liberty and restriction of freedom of movement. When you are illegally detained, you also lose your freedom of movement. This is plain and beyond question. It's not about how long one is detained. The mere act of being detained and deprived of the freedom of movement is enough to constitute an infringement of this fundamental right. That being the case, the judge ought to have made a finding of unlawful deprivation of freedom of movement.
Right to property
The judge also shot down the argument that confiscation of the driver’s licence was a violation of the right to property, provided for under section 71 of the Constitution. The judge reasoned that this right had not been infringed since in her view, “the issue of confiscation of a motorist’s driver’s licence by a police officer would not be covered as deprivation of property under s 71. If we say that the right to property covers situations like the present one, we will be stretching the right too far.”
With respect, the judge also erred on this point. The reasoning by which she disqualified a driver’s licence from things that are covered by the right to property was at best cursory and flawed. If the judge had invested more in dissecting the right to property and the personal and economic consequences of a driver's licence, she would not have reached the conclusion that it does not constitute property for purposes of section 71. Section 71 is a very broad provision which arguably covers all forms of property except agricultural land which is specifically covered under section 72 of the Constitution. The definition of property under the provision could not be any broader. It states that:
“"property" means property of any description and any right or interest in property.”
As these words show, this is a very wide definition. A driver’s licence is the personal property of the person to whom it is issued by the State. It is no different from a licence to operate a business since it gives certain entitlements, albeit subject to conditions. A license entitles the holder to exercise certain rights on the road. Indeed, it is an important qualification for certain jobs and professions. It is therefore an important piece of property to the holder gained through investment of one’s labour, time and money. If a licence does not qualify as personal property, what else could it be? Contrary to the judge's interpretation, a licence qualifies as property.
Can one be deprived of it? A driver’s licence is held subject to certain conditions. If the holder fails to satisfy those conditions, it can be taken away and section 71 anticipates these situations in which one might be deprived of his property. For example, it states in section 71(3) that any deprivation must be in terms of a law of general application. The same provisions enumerates conditions under which that property can be acquired and recognises that a person has the right to approach a court to challenge the deprivation of property.
In light of this, it is hard to see how and why Justice Muremba refused to categorise a driver’s licence as “property” under the Constitution. It is personal property whose confiscation without due process amounts to unlawful deprivation under the Constitution. The judge ought to have held that confiscation of the licence was an unlawful deprivation of property.
Does the order have general application?
Finally, the judge had to deal with the scope of the order, an issue of practical significance to all other motorists besides Makunura. Makunura had asked for a general order that would bind the police to “cease the practice of detaining motorists, confiscating their licences, impounding their vehicles and doing any other conduct that would compel motorists to pay spot fines against their will.” In other words, he wanted a general order that would apply to all instances beyond his specific case. Although the police and government had admitted to the illegality of compelling motorists to pay spot fines against their will and that there is no law authorizing them to confiscate drivers’ licences, the judge nevertheless refused to grant a general order against the police on the basis that the case was not a class action. She wrote,
“it is my considered view that in the present case I cannot grant an order that the police should cease the practice of detaining motorists, confiscating their licences, impounding their motor vehicles and doing any other conduct that would compel motorists to pay fines on the spot against their will. This is because this relief will not apply to the plaintiff only, but to all motorists at large yet the plaintiff has not instituted these proceedings as a representative of motorists. In other words he has not instituted a class action.”
The judge went on to describe the requirements of a class action and concluded that the Makunura case was not such a case. A class action is a legal procedure in which a person or group of persons act on behalf of the interests of a bigger group of persons. Section 85 (1) (c) of the Constitution allows any person acting in the interests of a group or class of persons to approach the court in order to enforce fundamental rights and freedoms. It allows potentially multiple similar legal actions to be brought on behalf of a larger groups of persons. The outcome would affect everyone, obviating the need for individual legal actions. Such actions are brought in terms of the Class Action Act [Chapter 8:17]. The judge reasoned that the Makunura action had not been brought in terms of the Class Action Act and could therefore not be dealt with as such.
The judge’s reasoning was that the court was dealing with the Makunura case only and it only heard evidence of what had happened to Makunura and not to other drivers. This was a her reasoning:
“In any case the plaintiff in his pleadings and in his evidence has not shown that motorists at large are affected by this kind of behaviour by the police. He has not shown that other than him being detained at the roadblock, his driver’s licence being confiscated by the third defendant at the roadblock on 12 February 2015, other motorists have been affected in that manner too. The pleadings and the evidence before the court show that only one person, the plaintiff himself has been affected by the conduct of the police. When only one person has been affected it is not a ground to seek a relief that affects all motorists at large. It is wrong for the plaintiff to make an assumption that the court knows that what was done to him by the third defendant is the common practice that is done to motorists by the police. The court deals with evidence that is presented before it. In the result, I will not grant an order that the police should cease the practice of detaining motorists, confiscating their driver’s licences and impounding their motor vehicles.”
On this basis, the judge refused to grant a general order against police conduct at road-blocks. The problem with this reasoning is that the ZRP could now argue that the judgement in the Makunura case applied only to an individual case and has no effect on the general conduct of its officers. This would mean every driver who is treated like Makunura having to take individual legal action or alternatively, a new class action being brought to seek a declaration of unconstitutionality.
With all due respect, the judge unnecessarily rendered a narrow interpretation to her otherwise commendable decision. The declaration that police conduct at roadblocks is unconstitutional does not require a class action for it to be applied generally to all police officers and motorists in other cases. What was at issue in the Makunura case was the constitutionality of police conduct and this is what the court found to be unconstitutional. It cannot be unconstitutional in one case and constitutional in others. That would be absurd. Most constitutional litigation which seeks to strike down legislation on the basis of unconstitutionality is not restricted to one case only once a declaration of unconstitutionality has been made. Rather, once a court declares that legislation is unconstitutional, that legislation becomes invalid for all other cases. It does not survive to be applied to other persons. Thus when the Constitutional Court declared that criminal defamtion was unconstitutional, that rendered the relevant law invalid. It could not be applied again in other cases.
Likewise, once a court rules that police conduct of detaining motorists or confiscating their licences is unconstitutional, it should mean all such conduct in other cases is no longer valid. The conduct cannot be unconstitutional in the Makunura case and constitutional in other cases. The Makunura judgment has rendered the confiscation of drivers's licences, the detention of motorists at roadblocks and compelling motorists to pay fines on the spot unconstitutional and invalid. After the Makunura case, police must simply put a stop to this unconstitutional conduct.
Two years ago, when the debate on spot fines was raging, I explained that the confusion lay in the failure to distinguish between the police’s power to impose spot fines and the power to demand payment of fines on the spot. The two were different. While police had the power to impose spot fines, they did not have the power to demand payment on the spot. As I explained,
“The current confusion over the issue of police powers regarding the imposition and collection of spot fines arises from a failure to appreciate that there is a material difference between the power to issue a spot fine on the one hand, and on the other hand, the power to compel a person to pay the fine on the spot. In other words, the power to impose a fine and the power to collect the payment”
I further explained that it was up to the motorist to decide whether to accept the charge and pay on the spot or to pay later. And that the motorist had the option to challenge the charge in court. I also explained that as the imposition of spot fines was administrative action, it had to conform to section 68 of the Constitution, which protects the right to fair administrative conduct. I concluded that while the law entitles police to impose spot fines, they had no power to compel payment on the spot, as they have been doing or using extra-legal means to compel motorists to pay on the spot.
Justice Muremba has come to the same conclusion in the Makunura case, following the precedent set in 2012 in the case of Babbage v The State.
What should be done now in light of the Makunura judgment?
If a motorist admits the offence, they can pay on the spot if they wish or they can be issued with a ticket for later payment. In other words, the motorist is not compelled to pay the fine on the spot.
The judgment does not stop police from mounting roadblocks. It only restricts what they can do in light of previous unlawful conduct. Reducing the number of roadblocks is a policy matter best handled through political channels. It is up to citizens to put political pressure on policymakers to reduce the problems caused by the high number of roadblocks on Zimbabwe's roads.
As with all cases in which lower courts make pronouncements on constitutional issues, the High Court decision in the Makunura case must now be confirmed by the Constitutional Court, which has the final and definitive say in such matters. It is unlikely, however, that the Constitutional Court will reach a different conclusion on the illegality of police conduct. If anything, the Constitutional Court might go further than the High Court judge was prepared to go and declare that such conduct violates not only the right to liberty by the right to freedom of movement, the right to a fair hearing and the right to property.