Soldiers slap police with $1 million lawsuit

Two soldiers injured by police gunfire last year have approached the High Court challenging the validity of a statute that gives a time limit to sue the police for civil wrong. Michael Nyika (27) and Crispen Tobaiwa were shot and injured by policemen who had stopped the vehicle they were travelling in and blocked their way. They were among passengers travelling from Harare to Karoi when the incident occurred near Banket in July last year.

Under the Police Act, people suing the police must do so within eight months of the incident. The two could not sue within the prescribed period as they were still admitted at Parirenyatwa Group of Hospitals. Through their lawyer, Mr Tendai Biti, the duo is now seeking to invalidate section 70 of the Act, which is impeding them from instituting their more than $1 million lawsuit for damages.

Mr Biti asked the court to scrap the section arguing that it is unconstitutional and discriminatory. He argued that section 15 of the Prescription Act provides that any other Government department can be sued within three years. He questioned the rationale of affording the police a shortened period of eight months.

Under the new constitution the High Court now has constitutional powers to decide the validity of pieces of legislation. "The argument is simply that police cannot get extra protection over anyone and everyone else," argued Mr Biti. "Police should be brought at par with the President and everyone else which is three years covered under section 15 of the Prescription Act."

Mr Daniel Mambo argued that the section disputed was constitutional and the duo should have brought their action within the prescribed period. He said police dealt with high volume of litigation hence the need to dispose of the matters timeously.

At this juncture, Justice Amy Tsanga interjected and queried the rationale of the police to hide behind the prescription in view of the circumstances surrounding the case. She asked whether it was reasonable for the police to act in the manner it did.

"Does it not border on callousness? Does it make sense?" Mr Mambo insisted that police were simply following the law. "On that note the court can decide. It is prescribed. If it is so, it is actually beyond redemption," he said. After hearing submissions by both parties counsel Justice Tsanga reserved judgment. On July 19 last year, Nyika and Tobaiwa had their journey from Harare to Karoi. They were in their army uniform.

They boarded a vehicle at Westgate Shopping Centre around 11pm and arrived in Banket an hour later. They boarded another vehicle, a Nissan NP300 pick up in Banket to continue with their journey to Karoi. But before they left, the driver indicated that he wanted to pass through a farm known as Madzibaba Farm in Banket.

Several passengers unknown to the duo were also in the vehicle. On the way to the farm the driver got lost and ended up at Ashire Mine. He made a U-turn and on the way back, the vehicle was stopped by a group of seven policemen who had their vehicles blocking the road. They were all armed with FN rifles.

The policemen ordered everyone including the duo to disembark with their hands up. The duo and all those receiving the order complied. At that moment one of the policemen, Constable Lisborne Chibanda opened fire at the duo. Nyika lost his right hand middle finger.

He was also shot in the chest. He still has a bullet lodged in his chest. Tobaiwa was shot on his right leg which was subsequently amputated. Nyika is claiming $382 725 while Tobaiwa is $572 725 in damages plus interest for the injuries suffered as a result of the police negligence. The other respondents are Cst Shylet Mugundi, Assistant Inspector Manyibu, Cst Joram, who are all based at Banket Police Station.