Police 'trapping' unconstitutional, says legal expert

THE practice of "trapping" would-be offenders by the police in the administration of criminal law is inconsistent with the Constitution and therefore unconstitutional, a senior advocate has said.

Advocate Lucas Nkomo said this in submission of his appeal court documents on behalf of Admire Chikwayi, a public prosecutor who was tried and convicted for corruption and acting inconsistently with his duty as a public officer by soliciting for a bribe of $300, from Nicholas Masuku, a complainant in a fraud case pending before the court.

The charges against Chikwayi arose from a trap initiated by the police.

"The research by counsel in this matter reveals that the practice by the police in the administration of criminal law is not provided for or regulated under the Criminal Procedure and Evidence Act (Chapter 9:07) or any Act of Parliament," said Adv Nkomo.

"The only document which seems to mention the practice of trapping by the police is a Zimbabwe Republic Police Manual called Police Standing Orders which defines trapping as follows: The term trapping is commonly used to describe the method adopted by the police to detect the various classes of illicit traffic and business prohibited in terms of our Statute Laws. Testing or trapping must be confined to cases where it is known to police that illegal traffic is being carried and where ordinary police methods have failed or are impracticable."

Adv Nkomo added that according to the ZRP Police Manual and Police Standing Orders, trapping ought to be resorted to in limited suspected crimes.

"The crime of which Chikwayi was suspected did not fall under the category of suspected crimes where trapping ought to have been resorted to. It therefore follows that even by the police manual itself, the trapping of Chikwayi was improper and cannot be sustained," said Adv Nkomo.

Quoting from case law, Adv Nkomo added that "the practice of trapping has many distasteful features and no State can safely adopt a policy by which crime is artificially propagated".

"Any reasonable, fair-minded person would immediately recognise the intrinsic unfairness involved in a government official deliberately enticing or inducing someone, not otherwise predisposed to commit an offence, to commit one, and then, having done so, to turn around and instigate a prosecution against such person," said Adv Nkomo.

"It would be farcical to insist on the highest standard of fairness in the courts while at the same time tolerating a low standard of fairness in the police procedures which had taken place before an accused person reached the court."

Adv Nkomo petitioned the High Court to quash Chikwayi's conviction alleging that the sentence obtained by the State on the basis of a trap by the police constitutes a violation of the constitutional right to lawful, efficient, reasonable, proportionate, and impartial and both substantively and procedurally fair administrative conduct enshrined in the Constitution.

"With parity of reasoning to allow the conviction of Chikwayi on the evidence of a trap would be to endorse a police practice which does not measure up to the Constitutional imperative of administrative conduct that is lawful, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair," summed Adv Nkomo.

The State has indicated that it will oppose the application of appeal by Chikwayi though it is yet to file opposition papers.

Chikwayi was tried by the magistrate's court, Western Commonage, on 17 and 18 December. He was found guilty as charged and sentenced to 24 months imprisonment of which six months were suspended for five years on condition that he does not within that period commit any offence involving dishonesty for which he will be sentenced to imprisonment without the option of a fine.