Police Act no longer applies to me, says ex-cop

Former officer-in-charge of Mbare Police Station Violet Sigauke, accused of taking bribes from commuter omnibus operators in return for safe passage, is now challenging the constitutionality of a disciplinary hearing instituted by the police after her retirement.

Sigauke (55), a former Chief Inspector, retired from the force on February 14 this year, whereas the offence was allegedly committed a week before she left the police service.

She was arraigned before the criminal courts charged with criminal abuse of office and the matter is still pending.

On June 9, Sigauke was summoned to appear before the disciplinary board to answer to charges of contravening sections of the Police Act.

She was accused of "acting in an unbecoming or disorderly manner or in any manner prejudicial to good order of discipline or reasonably likely to bring discredit to the police service".

She was summoned in terms of Section 40 of the Police Act which gives powers to the Commissioner-General to try an ex-member and the proceedings are being presided over by magistrate Mr Gideon Ruvetsa.

For that reason, Sigauke is seeking referral of the matter to the Constitutional Court citing violation of her constitutional rights.

In her application, the Comm-Gen of the Police and the State are cited as the respondents.

Through her lawyer Mr Admire Rubaya, Sigauke raised questions which she said could only be answered at the apex court.

She argued that the decision of the Comm-Gen to proceed with disciplinary proceedings against her in terms of Section 40 of the Police Act (Chapter 11:10), was invalid and unsustainable at law.

"These questions must be answered at the Concourt, whether or not Section 40 of the Police Act is consistent with Section 219 (4) of the new Constitution. Whether or not in the circumstances of the matter, the intention of the ZRP to discipline an ex-police officer is tainted and accordingly in violation of section 65(1) of the Constitution.

"Whether or not the prosecution of ex-police officers before a police disciplinary tribunal amounts to unequal treatment of ex-police officers before the law as guaranteed in Section 56(1) of the Constitution. Whether the decision to continue with the applicant's disciplinary hearing pursuant to Section 40 of the Police Act under the circumstances is unlawful, unconstitutional and consequently void."

In her founding affidavit, Sigauke questioned why she was summoned to appear before a disciplinary tribunal when she had already tendered her retirement from the police service on February 14.

She said by that time she had already resigned and was no longer subject to laws governing members of the police force.

Sigauke said it was unconstitutional and incompetent for the Comm-Gen to discipline a non-member.

"The gravamen of a disciplinary hearing in the police force is to try and maintain discipline amongst its members, but that cannot be achieved through seeking to discipline non-members," she said. "I am now a civilian and no longer answerable to the Comm-Gen of Police.

"Thus Section 40 of the Police Act is unconstitutional, and this matter should be referred to the Concourt for the adjudication of the question whether or not Section 40 is consistent with the fundamental tenets of the Constitution."

The application is still pending before Mr Ruvetsa.