Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
Zimbabwe’s Constitution (1979), as amended to 2009, states:
2 Preventive detention
(1) Where a person is detained under any law providing for preventive detention–
(b) his case shall be submitted … for review by a tribunal established under subparagraph (4) and shall be reviewed by such tribunal forthwith; and thereafter his case shall be reviewed by such tribunal at intervals of thirty days (or during a period of public emergency one hundred and eighty days) from the date on which his case was last reviewed;
(d) if the tribunal orders, either because he satisfies the tribunal that new circumstances have arisen or because the tribunal considers it to be desirable, that his case should be submitted to the tribunal for review before the expiration of thirty days (or during a period of public emergency one hundred and eighty days) from the previous review, the case shall be submitted for review when so ordered by the tribunal.
(2) On any such review, the tribunal may make recommendations concerning the necessity or expedience of continuing the detention to the authority by which it was ordered and that authority shall be obliged to act in accordance with any such recommendation unless, during a period of public emergency, the President otherwise directs; and where the President so directs, the authority shall cause to be published in the Gazette a notice that he has so directed.
(3) A person who has been detained under any law providing for preventive detention and who has been released from detention in consequence of a report of a tribunal established under subparagraph (4) that there is, in its opinion, insufficient cause for his detention shall not again be detained by virtue of such law within the period of one hundred and eighty days from his release on the same grounds as those on which he was originally detained.
(7) For the purposes of subparagraph (3), a person shall be deemed to have been detained on the same grounds as those on which he was originally detained unless a tribunal established under subparagraph (4) has reported that, in its opinion, there appear prima facie
to be new and reasonable grounds for the detention, but the giving of any such report shall be without prejudice to the provisions of subparagraphs (1) and (5).
The Constitution also states:
In this Constitution, unless the context otherwise requires–
“period of public emergency” means–
(a) any period when Zimbabwe is engaged in any war and the period immediately following thereon until such date as may be declared by the President, by proclamation in the Gazette
, as the end of the period of public emergency caused by that war.
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
50. Rights of arrested and detained persons
(1) Any person who is arrested –
(e) must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.
(2) Any person who is arrested or detained -
(a) for the purpose of bringing him or her before a court; or
(b) for an alleged offence;
and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.
(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.
(5) Any person who is detained, including a sentenced prisoner, has the right –
e) to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly.
(7) If there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order –
(a) of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed;
(b) declaring the detention to be illegal and ordering the detained person’s prompt release
and the High Court may make whatever order is appropriate in the circumstances.
(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(f) the right to obtain an order of habeas corpus as provided in section 50(7)(a).
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated.
In its attached Second Schedule on Limitations on Rights During Public Emergencies, the Constitution also states:
1. In this Schedule –
“detainee” means a person who is detained under an emergency law that provides for preventive detention;
“emergency law” means a written law that provides for action to be taken to deal with any situation arising during a period of public emergency;
Extent to which fundamental human rights or freedoms may be limited
2. (1) An emergency law may limit any of the fundamental human rights or freedoms, but only to the extent set out in section 87.
Detainees Review Tribunal
3. (1) An emergency law that permits preventive detention must provide for the establishment of a tribunal to review the cases of detainees.
(2) The review tribunal must be appointed by the President on the advice of the Judicial Service Commission and after consultation with the Committee on Standing Rules and Orders.
(3) The review tribunal must consist of –
(a) a chairperson, who is or has been a judge; and
(b) two other members, one of whom –
(i) is or has been a judge or is qualified to be appointed as such:
(ii) has been a magistrate in Zimbabwe for at least seven years: or
(iii) has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe.
Review of detainees’ cases
5. (1) Every detainee’s case must be submitted to the review tribunal within ten days after his or her initial detention and the tribunal must be informed of the name of the detainee, the place where he or she is detained and the reasons for the detention.
(2) Every detainee’s case must be resubmitted to the review tribunal at intervals of thirty days from the date on which the case was last reviewed, or at shorter intervals if the tribunal so orders.
(3) The tribunal must proceed without delay to review all cases submitted to it.
(4) At all hearings by the review tribunal, the detainees whose cases are being reviewed must be allowed to present their cases in person or, if they wish –
(a) through legal practitioners assigned to them by the State at State expense:
(b) at their own expense, through legal practitioners of their choice.
(5) The reference in subparagraph (1) to a ten-day period includes a reference to lesser periods of detention that amount to ten days, in the case of a detainee who is released within ten days after being initially detained and is then re-detained within ten days after the release.
Recommendations of review tribunal
6. After reviewing a detainee's case, the review tribunal must make written recommendations to the authority that ordered the detention as to whether or not the detainee should continue to be detained, and the authority must act in accordance with the tribunal’s recommendation.
Preservation of detainees’ access to courts
8. This Schedule is not to be construed as limiting a detainee’s right to challenge in a court the lawfulness of his or her detention, whether or not his or her case is already before the review tribunal.