Constitution Watch 7/2019
ID Checks at Roadblocks – Are they Legal?
5th October 2019
CONSTITUTION WATCH 7/2019
[5th October 2019]
ID Checks at Roadblocks – Are they Legal?
For several days after the MDC-A attempted to hold a demonstration in Harare
last month, the police mounted roadblocks along routes leading into the city
centre [the CBD]. They stopped and searched commuter omnibuses and other
vehicles and forced passengers without identity documents to disembark,
leaving them to walk the rest of their journey. A Member of Parliament raised
the issue in the National Assembly, calling the conduct of the Police “unlawful”,
and received the following response from the Minister of Justice, Legal and
Parliamentary Affairs:
“Where there is a threat to the peaceful co-existence of members of the
society, the police will use every necessary means that they have to ensure
that there is peace, and that includes having roadblocks, ensuring that
everyone who is in a commuter omnibus gets out and they search to ensure
that there are no dangerous weapons that will get into the city centre. So
that is standard practice.”
Perhaps emboldened by the Minister’s support, the Police adopted the same
tactics late last month when the MDC-A celebrated their 20th anniversary in
Harare. Again, they set up roadblocks, searched vehicles and demanded IDs
from passengers.
The Minister was correct in saying that the Police are entitled to use “every
necessary means that they have” to preserve peace, i.e. to prevent violent
disorder. But the “necessary means that they have” are those the law gives
them: the Police must not act unlawfully, and when the Minister went on to
suggest that their conduct was lawful, he was with respect wrong. In fact, the
conduct of the Police violated the Constitution and the law in several respects.
Freedom of Movement
Section 66(2)(a) of the Constitution provides that:
“Every Zimbabwean citizen and everyone else who is legally in Zimbabwe
has the right to … move freely within Zimbabwe.”
As long ago as 1997 our Supreme Court ruled that arbitrarily stopping either
people or vehicles infringes the constitutional right to freedom of movement,
though the court held that the random stopping of vehicles to check for vehicle
defects could be regarded as a justifiable limitation if it was done for the
purpose of ensuring safety on the roads.
Section 72(1)(a)(i) of the Road Traffic Act authorises the Police to stop
vehicles, but they may do so only for the purposes specified in the Act, namely
to check the vehicles and their equipment for compliance with the law and to
ensure the vehicles are not overloaded.
This provision is probably