LAW SOCIETY OF ZIMBABWE
Following the promulgation of the above Regulations, the police and certain youths and other persons, purporting to act with investigative powers under these Regulations have mounted hundreds of roadblocks all over the country. Members of the public are subjected to public searches of their property and persons, and persons found to have more than $100 000 000 of the old currency on their person or property are arrested, and taken into police custody. Hundreds of millions of dollars have been confiscated by the police and the Reserve Bank from people found with amounts in excess of the prescribed amounts, $100 million for individuals, and $5 Billion for traders.
Millions of dollars have been corruptly confiscated by police and other persons at roadblocks set up purportedly to carry out investigations under these Regulations. Members of the public, and visitors to Zimbabwe are humiliated, dehumanized and traumatized in dozens of searches. The dignity, personal integrity and privacy of individuals have been severely violated through such searches and seizures.
The Regulations are, themselves, passed by way of Presidential decree, rather than through the bi-cameral Parliament of Zimbabwe. They are, therefore, a direct exercise of executive power. They raise, furthermore, certain, very vital questions of Human Rights, the Administration of Justice and the Rule of Law.
The Law Society of Society of Zimbabwe condemns very strongly the arbitrary, invasive and degrading actions of the police and other state agents at roadblocks, and further condemns the corrupt practices that have evolved within the police and amongst members of the public following the promulgation and administration of the Regulations.
Further, the Law Society expresses its grave concern at the very practice of stopping and searching members of the public on roads and other public places, and confiscating money from them. The police and other state agents purport, in doing this, to be acting under the provisions of the Regulations. The Law Society of Zimbabwe is of the opinion that, while the Regulations do provide for the confiscation, against the issue of a “currency stabilization bond� at a time when an individual “deposits or brings for exchange� amounts in excess of those prescribed for individuals and traders, they do not provide for the confiscation of money by the police, members of the Army, members of the Youth Brigade or any persons acting for or at the behest of the state. Therefore, The Law Society of Zimbabwe holds the view that the ongoing practice by the police is not only grossly invasive, a violation of the individual’s right to privacy, dignity and integrity of the person, but unlawful and unsanctioned by the Regulations under which the police purport to act, and from which they purport to derive their authority.
Further pertinent issues of human rights arise from these Regulations. Under section 4 of the Regulations, the state is given power in certain circumstances, to confiscate money against the issuing of a one-year “currency stabilization bond.� Upon the maturity date of that bond, the person may be refunded his money without interest, even where the person is absolved of any criminal or other liability. This amounts to compulsory and punitive acquisition of property without compensation, contrary to the provisions of Section 16 of the Constitution of Zimbabwe, in that the benefit of any income on investment of such confiscated money is lost to the person affected. Confiscated amounts, it must be recalled, may run into hundreds of billions where traders and business entities are concerned.
Under section 5(6) of the Regulations, the Reserve Bank and the Government are granted immunity from any civil suits arising from losses suffered by financial institutions resulting from the process of rounding off during the conversion from the old currency to the new.
A wider immunity is granted under section 12 of the Regulations, which provides, essentially, that no suit, prosecution or other legal proceedings shall lie against the Government, the Reserve Bank, any financial institution, or any employee of the State for anything done “in good faith� under these Regulations or any directions issued under them.
The Law Society of Zimbabwe expresses its concern at the granting of such immunities to state employees. It is of the view that such blanket and generous protection does not only promote and cultivate police and state agent impunity, but also amounts to an ouster of the jurisdiction of the courts to decide whether the private individual’s rights have not been infringed or violated by any person acting under these Regulations. The Law Society of Zimbabwe condemns in the strongest terms this further ouster, or limitation of the jurisdiction of the Courts, following as it does upon the heels of the 17th Amendment to the Constitution, which has provided for the total ouster of the jurisdiction of the courts in land matters. The principles of Democracy and the Rule of law demand that the courts should be enabled, and protected in their endeavours, to provide a real check on the use of executive power. The courts are powerless to protect the individual against executive excesses if their power to examine certain uses of power is curtailed and/or ousted.
Indeed, the courts have struck down and criticized in previous decisions that are legal precedent in Zimbabwe [such as Granger V Minister of State (1984)], sweeping immunities granted to state agents against the suit of the aggrieved individual and similar ousters of the Courts’ jurisdiction.
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PRESIDENT
LAW SOCIETY OF ZIMBABWE
HARARE