Constitution Watch 5/2019 Legality of Searches by Soldiers 28 February 2019 • Normally searches must be authorised by a search warrant issued by a magistrate or justice of the peace (other than a police officer) who has reasonable grounds for believing that an article liable to be seized is in any particular premises or area. • A search warrant must specify clearly and precisely the articles to be searched for and the premises or area to be searched. The courts insist that search warrants are worded very precisely. • In certain circumstances police officers can search premises without a search warrant, but only if: • the owner or occupier of the premises consents to the search, or • the officers believe they would get a warrant if they applied for one but delay in applying for it would defeat the object of the search. The CP&E Act certainly does not envisage “snap searches”, i.e. random searches conducted within a particular area. Randomness is a concept wholly inconsistent with the strict limits the Act places on powers of search, particularly the requirement that searches must generally be authorised by search warrants. Even though the Act allows a warrant to authorise a search within an “area”, the area must be small enough to reduce the element of randomness. A warrant could not specify such a wide area as “the residential suburbs of Harare” or even the area of a named highdensity suburb, because that would allow random or indiscriminate searches of houses to be conducted within the wide area. Effect of Illegal Search One final point. What if an illegal search turns up evidence of a crime – or, more specifically, what if soldiers searching a house illegally discover army uniforms stolen from Army stores? The answer is that almost certainly a court would refuse to allow the prosecution to lead evidence that the soldiers found the uniforms. Section 70(3) of the Constitution is to the effect that illegally obtained evidence cannot be produced in a criminal trial if it “would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.” Section 258A of the CP&E Act indicates how a court should decide whether to allow illegally-obtained evidence to be produced. The section is not easy to understand but broadly it means that a court must strike a balance between the rights of the accused person and the integrity of the justice system on the one hand, and on the other the need to ensure that criminals do not escape justice through minor technicalities. Conclusion If a court were told that soldiers, whether knowingly or unknowingly, conducted random searches of peoples’ homes in complete violation of the law, it would be compelled to refuse to allow evidence to be led of what the soldiers discovered as a result of their searches. If a court were to allow such evidence to be heard the criminal justice system would be fatally compromised. Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied To subscribe or unsubscribe from this mailing list please email billwatch@mango.zw