Constitution Watch 5/2019
Legality of Searches by Soldiers
28 February 2019
CONSTITUTION WATCH 5/2019
[28th February 2019]
Legality of Searches by Soldiers
Introduction
A document purporting to emanate from the Public Relations Directorate at Army
Headquarters has been circulating on social media, warning the public that the ZNA
(the Zimbabwe National Army) will be conducting “snap searches” in residential
areas in order to find stolen army uniforms and similar clothing. The document
states that the searches are necessary because of a sharp rise in thefts and
robberies carried out by criminals using “military regalia”. In polite but firm tones the
document urges members of the public to hand over any such regalia to the search
teams or surrender them to their nearest police station.
Veritas cannot vouch for the authenticity of the document, but military personnel
searched houses in the aftermath of last month’s disturbances so it is an opportune
moment to examine what powers, if any, soldiers have to search civilian premises.
Powers of Search Generally
A search of a person’s home or property is an infringement of their right to privacy,
guaranteed by section 57 of the Constitution in the following terms:
“Every person has the right to privacy, which includes the right not to have—
(a) their home, premises or property entered without their permission;
(b) their person, home, premises or property searched;”
The right is not absolute because there must be circumstances when law
enforcement authorities can search premises in order to arrest suspected criminals,
seize evidence needed for detecting or prosecuting crime and so on. The law
however is careful to protect privacy so far as possible, and the courts in this country
and elsewhere have laid down criteria that must be met for a search to be legal:
• The search must be conducted in terms of legislation – there is no general
common-law power of search.
• The legislation must clearly define the power of search.
• The search must have a compelling public objective (for example crime control).
• The search should generally be authorised by an independent authority (for
example, by a magistrate issuing a search warrant).
The first question to ask, therefore, is: Is there any legislation which gives military
personnel the power to search civilian premises?
Legislative Authority for Soldiers to Conduct Searches
Only two Acts empower soldiers to conduct searches:
The Defence Act