Constitution Watch 1/2018
Need to Implement Constitution section 210
18 September
CONSTITUTION WATCH 1/2018
[18th September 2018]
Now elections are over Veritas is resuming its series of bulletins on
implementation of the Constitution
Implementation of Section 210 of the Constitution
Section 210 of the Constitution has still not been implemented over five years after
the main parts of the Constitution came into force on 22nd August 2013.
The section provides for setting up an independent body to receive and investigate
complaints against the security services [i.e. the Police Service, the Defence Forces,
the State intelligence services and the Prisons and Correctional Service]. It reads
as follows:
“210 Independent complaints mechanism
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.”
The need for an independent complaints mechanism is obvious. The Police and the
Defence Forces are the coercive arms of the State which the government employs
to enforce obedience to the law and the maintenance of public order. As coercive
arms they can use force, and if they do there will inevitably be complaints about their
use of it. In the interests of the public, and to protect their own reputation, it is
important for these complaints to be investigated fully and impartially by an
independent body.
Five years after the Constitution came into force, no mechanism has been
established in terms of section 210.
Veritas’s Court Case
In April 2015 Veritas instituted an application in the Constitutional Court [Chironga 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. In fact the only question raised was how long
the government should be given to implement this important section of the
Constitution: the government lawyer suggested a year and our lawyer Mr Biti
suggested three months. The Bench asked each party whether a compromise of six
months would satisfy both and both agreed.
The Court adjourned the hearing, however, without delivering a judgment or making
an order on the application.
Where’s the Judgment?
Two and a half years later we are still waiting for the Court’s decision.