Magistrate accused of violating Constitution of Zimbabwe

A GWANDA resident magistrate Mr Reuben Mukavhi violated the Constitution of Zimbabwe by unilaterally authorising the detention of three suspects in police cells for more than 48 hours, a case that has spilled into the Constitutional Court with the trio suing the State for US$45 000.

The suspects - Sikhumbuzo Mathe, Walter Denhere and Ishmael Phiri - who are police officers, also seek the striking down of Section 32(1) of the Criminal Procedure and Evidence Act, which empowers a magistrate to make his or her own decision to extend incarceration beyond 48 hours.

Mathe, Denhere and Phiri are being accused of stealing US$270 000 from a Gwanda man and magistrate Mr Mukavhi made the decision to extend their stay in police cells in his chambers.

In terms of the new Constitution, no suspect must be detained in police cells for more than 48 hours unless a competent court properly sits and resolves to extend the detention after hearing arguments from the parties.

Section 50(3) of the new Constitution of Zimbabwe reads:
"Any person, who is not brought to court within the 48 hour period referred to in subsection (2), must be released immediately unless their detention has earlier been extended by a competent court".

Gwanda magistrate-in-charge Mr Reuben Mukavhi, acting on a request by the investigating officer Collin Sigauke, issued three warrants for further detention in respect of the three in violation of the Constitution.

Prior to the introduction of the new Constitution, magistrates would issue such warrants but Mr Mukavhi erred in doing that in February this year when the courts are already operating in terms of the new supreme law of the country.

The trio's lawyer Mr Matshobana Ncube took the case to the Constitutional Court and last Wednesday State lawyer Mr Editor Mavuto conceded that the magistrate erred but pleaded with the court to be exempted from paying the damages.

"Respondent concedes that the conduct of the magistrate in extending the detention of applicant beyond 48 hours in terms of Section 32(2) of the Criminal Procedure and Evidence Act was unlawful.

"The respondent therefore submits that Section 32(2) of the CP and E Act is inconsistent with Section 50(3) of the Constitution, respondent submits that it is unconstitutional.

"It can therefore be declared ultra-vires Section 50(3) of the Constitution of Zimbabwe," said Mr Mavuto.

He said the order for payment of damages was directed at the State when the breach was done by an individual magistrate and an investigating officer hence the penalty will not be deterrent in any way.

"Likewise, in the present case the magistrate and the investigating officer will not be deterred since the money is not deducted from their salaries.

"In fact it comes from the taxpayers. In any event, it has not been submitted how the suggested damages will deter the agents of the State and how it will assist in safeguarding the fundamental rights enshrined by the Constitution.

"Respondent is of the view that the punitive damages will enrich the applicants at the expense of the taxpayer.

"It is, therefore, submitted that the application for damages be dismissed," argued Mr Mavuto.

The Constitutional Court asked Mr Mavuto and Mr Ncube to draft a consent order that should be brought to the court for endorsement.