CHIRAMBA v MINISTER HOME AFFAIRS & ORS 2008 (2) ZLR 269 (H)

Flynote

Criminal procedure — arrest — child of arrested person — police having no right to detain child along with parent

Criminal procedure — arrest — time for which an arrested person may be detained by police

Family law — child — arrest — parent of child arrested by police — police having no right to detain child along with parent

International law — treaties — human rights treaty — obligations of state parties — duty of state parties to refrain from acts which violate treaty and to guarantee enjoyment of rights contained in treaty

Headnote

The applicants, all activists in the main opposition party, were detained by the police. One of the applicants had a two year old child and the child was also taken away with its mother. For some two weeks the applicants were kept incommunicado. They had no access to their lawyers for nearly two weeks. They were not informed of the reason for their arrest, and enquiries by their lawyers were met with denials that the applicants were in police custody at all. The applicants sought orders (a) declaring their arrest and continued detention unlawful; (b) requiring the respondents and all those acting through them or on their behalf to permit the applicants access to medical treatment at medical centres of their choices; and (c) directing the respondents produce the applicants before a High Court judge in chambers within two hours of the order being made or, alternatively, to take the applicants for a remand hearing at the magistrates court by a stated time, failing which the respondents should forthwith release all the applicants from custody.

Held, that Zimbabwe is a signatory to the International Covenant on Civil and Political Rights. As a state party to this treaty, Zimbabwe is bound by the obligations flowing from the treaty, which deals, inter alia, with the rights of persons who have been arrested and detained on criminal charges. The treaty places two types of obligations on states: firstly, the duty to respect and ensure human rights and, secondly, the duty to guarantee that those same rights are respected. The first set of obligations is both positive and negative in nature; on the one hand the state must refrain (whether by act or omission) from violating human rights; and on the other the state must ensure that, through the adoption of whatever means necessary, such rights can be actively enjoyed. Section 13(3) of the Constitution guarantees the rights of persons who have been detained, and s 32(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] requires that a person who has been arrested must be brought before a judge or magistrate within 48 hours. The respondents had denied the applicants the protection of the law. Their conduct in doing so should be deprecated.

Held, further, that Zimbabwe was also a signatory to the Convention on the Rights of the Child and accordingly it must be seen, through the acts of its public officials, to be protective of the rights of the child. Article 16 of the Convention provided that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. Neither the Criminal Procedure and Evidence Act nor the Childrens Act [Chapter 5:06] provided for a child in a situation like this; they dealt with young persons suspected of having committed criminal offences. The Prisons Act [Chapter 7:11] made provision in s 58 for dealing the unweaned child of a female prisoner. Section 84(1) of the Children's Act did not expressly address the plight of a baby taken by police who have arrested its mother but the prohibition against detention of minors is implied in this section. The conduct of the respondents in this case did not in any way uphold this international obligation to protect and promote the rights of the child. To subject a two year old to the rigours of detention simply on the grounds that its mother may have committed some criminal offence is totally unconscionable and immoral, made worse by the denial of basic rights to the mother.

Held, accordingly, that the orders sought should be granted.