Constitution Watch 1/2018
Need to Implement Constitution section 210
18 September
Prejudicial Effect of Delay
The government’s inexcusable delay in setting up the independent complaints
mechanism, and the Constitutional Court’s delay in ordering the government to
comply with section 210, has seriously prejudiced countless people who have been
unable to get their grievances against the Police and Defence Forces properly
investigated.
Public confidence in the Police might not have deteriorated so much if the public felt
they had effective recourse if the Police overstretched their authority. Maintenance
of law and order in the long run depend on good relationships between the public
and those responsible for law and order.
Events before and after the recent election illustrate this, in particular the tragic
shooting of six demonstrators in Harare. If the independent complaints mechanism
had been set up,
✓ Demonstrators might have had more respect for the police
✓ The police would have thought twice about calling in the army
✓ The army would have taken more care if they knew they would be held to
account.
✓ relatives of the deceased could have turned to it for a proper investigation of
the shooting, instead of having to rely on a commission of inquiry which lacks
investigatory powers beyond summoning and questioning witnesses.
Need for a Judgment
The government is reluctant to establish the complaints mechanism – that is clear –
so it needs the spur of a court order to make it do so. Which is what we asked for in
the Chironga case.
The Constitutional Court, above all courts, is responsible for upholding the
Constitution and ensuring that the government obeys it. The Court is also bound by
the Constitution, which states in section 165 that “justice must not be delayed”.
A delay of over two and a half years in giving judgment in what seems a clear-cut
case is inexplicable. It also runs counter to the Judicial Service (Code of Ethics)
Regulations, 2012, section 19(1) of which provides that if a court does not give
judgment immediately after hearing a case the judgment should normally be
delivered within 90 days and, except in unusual and exceptional circumstances,
should not be delivered more than 180 days later.
The Code of Ethics binds members of the Constitutional Court just as much as other
judges.
Quis custodiet ipsos custodies?
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