Constitution Watch 7/2019
ID Checks at Roadblocks – Are they Legal?
5th October 2019
constitutional, but there is no suggestion that the Police were checking for
vehicle defects when they stopped vehicles and required passengers to identify
themselves. So the section cannot be used to justify the conduct of the Police.
A statute which the Police might more plausibly rely on for their actions is the
Public Order and Security Act [POSA] — which is still in force, not yet having
been replaced by the Maintenance of Peace and Order Bill [MOPO]. Section
34(2) of POSA states that the Police can set up roadblocks to stop and search
vehicles and everyone in them, “in circumstances where there are reasonable
grounds for believing that the search is in the interests of public safety, public
order or public health”. Another section of POSA, section 32(4)(d), permits the
Police to require anyone stopped at a police roadblock to produce an identity
document and, if they do not, to detain them until their identity is established.
These two sections of POSA, far-reaching as they seem to be, probably do not
authorise the Police to stop and search all vehicles and to prevent passengers
without IDs from continuing their journey. Section 86 of the Constitution allows
fundamental freedoms such as freedom of movement to be limited by a law
which is “fair, reasonable, necessary and justifiable in a democratic society”,
but the law cannot go so far as to remove the freedom altogether. By ordering
passengers without IDs to disembark from their vehicles the Police were
denying many if not all of those passengers their right to travel to the Harare
CBD. That was not fair, reasonable, necessary or justifiable in a democratic
society.
In any event, section 32(4)(d) of POSA does not permit the Police to order
people without IDs to get out of their vehicles and proceed for the rest of their
journeys on foot. No law allows them to do that.
The action by the Police was clearly illegal.
The Right to Privacy
Another ground for regarding the Police action as illegal is that it infringed
peoples’ right to privacy guaranteed by section 57 of the Constitution. This
right includes the right not to have one’s home, premises or property (including
a vehicle) entered or searched without permission. Zimbabwe, like other
countries, accepts that there can be limitations on this right, though in our case
any limitation must be “fair, reasonable, necessary and justifiable in a
democratic society”.
We noted above that freedom of movement can be limited by a law which
allows vehicles to be stopped so that they can be checked for vehicle defects
and to ensure that their drivers are licensed to drive them. The right to privacy
can be limited for the same purpose, to search vehicles in order to see that
they are roadworthy ‒ for example, to check that they are carrying a spare tyre.
The right to privacy can also be limited to allow the Police to search premises
and vehicles if there are reasonable grounds for believing that the search will
yield evidence of a crime — the Criminal Procedure and Evidence Act [CP&E