Constitution Watch 3/2019 Security Forces: Still no Independent Public Complaints Mechanism
7 February 2019
CONSTITUTION WATCH 3/2019
[7th February 2019]
Section 210 of the Constitution not Implemented
Security Forces: Still no Independent Public Complaints Mechanism
Section 210 of the Constitution provides for the investigation of complaints against
the security services [i.e. the Police Service, the Defence Forces, the State
intelligence services and the Prisons and Correctional Service].
The section reads as follows:
“An Act of Parliament must provide an effective and independent mechanism for
receiving and investigating complaints from members of the public about
misconduct on the part of members of the security services, and for remedying
any harm caused by such misconduct.”
Nearly six years after the Constitution came into force, no independent mechanism
has been established in terms of section 210.
Veritas’s Concourt Case : For Implementation of Section 210
In 2015 Veritas instituted an application in the Constitutional Court [Mahiya v
Minister of Justice & Others CCZ 42/2015] calling on the government to implement
section 210 by gazetting a Bill to set up the independent complaints mechanism
envisaged by the section. The application was heard in January 2016 and the
Bench seemed to be sympathetic with the applicant’s case. The Court adjourned
the hearing, however, without delivering a judgment or making an order on the
application.
Nearly three years later we are still waiting for the Court’s decision.
Prejudicial Effect of Delay
The government’s inexcusable delay in setting up the independent complaints
mechanism, and the Constitutional Court’s inexplicable delay in ordering the
government to comply with section 210, have seriously prejudiced countless people
who were unable to get their grievances against the Police and Defence Forces
properly investigated. The need for an independent complaints mechanism has
been thrown into sharp relief, first by the events following last year’s election, and
recently by the suppression of last month’s protests. People were killed by soldiers
and police officers, and there have been allegations of rapes and beatings on a
shocking scale. All these cases need to be investigated so that the perpetrators can
be identified and, where appropriate, punished. Victims may be reluctant to
approach the Police to lodge complaints against police officers or army personnel,
and even if they do the Police may be reluctant to investigate their complaints.
What is needed is an independent body which the public can trust, to receive
complaints and ensure they are properly investigated and followed through.
Need for Trust
In the previous sentence we said that there needs to be a complaints body which
the public can trust. Trust is very important: the public must be able to trust its law