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CRIMINAL PROCEDURE AND AMENDMENT BILL 2015 SC

H.B. 2, 2015.]

 

 

 

Criminal ProCedure and evidenCe amendment Bill, 2015

memorandum

The Criminal Procedure and Evidence Act [Chapter 9:07], as its name implies, regulates the procedure that must be followed in criminal investigations and prosecutions, and the evidence that may be produced in criminal cases.  The principal aim of this Bill is to align its provisions with the new Constitution. The Bill will also seek to update the principal Act in some respects. In the course of the preparation of this Bill, extensive consultations were made with the Law Society of Zimbabwe and other interested parties.

                                                               The main amendments are directed at the following objectives:

  • To ensure that suspects who have been arrested are accorded the rights which the Constitution guarantees them, such as the right to remain silent, the right to contact their friends and relatives and their legal and medical advisers, and the right to be brought to a court within 48 hours.
  • To define the compelling reasons justifying the continued detention of the suspects, as required by section 50 of the Constitution.
  • To ensure that accused persons receive fair trials, as required by section 69 of the Constitution.
  • To substantially improve the provisions connected with the seizure, custody and disposal of articles for the purpose of criminal proceedings, so as to bring them into conformity with section 71 of the Constitution.
  • To provide for judicial conferences to formulate sentencing guidelines.
  • To repeal unconstitutional provisions relating to the death penalty.

The contents of the individual clauses of the Bill are explained below.  In this memorandum, the Criminal Procedure and Evidence Act will be referred to as “the Act”. In the Bill itself it is called “the principal Act”.

Clause 1

This clause sets out the Bill’s short title.

Clause 2

This clause will amend section 2 of the Act, which contains definitions of words and phrases used throughout the Act.  The new definition of “accused” will confine the meaning of the term to persons who have entered the criminal justice system as suspects.  The definition of “statutory capital offence” is repealed because under section 48 of the Constitution there is only one offence for which capital punishment (i.e. the death sentence) can be imposed — if a law permitting it is enacted — namely murder committed in aggravating circumstances.  The definition of “compelling reasons” is required because that phrase is used in the new Constitution (in section 50(1)(d)) in connection with the rights of arrested and detained persons.  The clause also seeks to insert new definitions that are required in connection with the proposed insertion of provisions for the taking of forensic DNA samples; these definitions are “authorised person”, “bodily sample”, “buccal sample”, “DNA”, “forensic DNA analysis” and “intimate sample”

Clause 3

Sections 258 to 263 of the Constitution establish the National Prosecuting Authority (NPA) (headed by the Prosecutor-General) which is responsible for conducting criminal prosecutions on behalf of the State.  Before the Constitution came into operation, the Attorney-General was in charge of such prosecutions.

This clause will repeal Part II of the Act, which deals with prosecutions at the public instance, to bring it into line with the Constitution.

The new section 5 will make the NPA and its officers, acting under the direction of the Prosecutor-General, responsible for public prosecutions, though if NPA officers are not available the section will allow the Prosecutor-General to authorise other people to prosecute.

The new section 7 will permit a change of prosecutors, i.e. will permit criminal proceedings begun by one prosecutor to be continued by another;  the section is a re-enactment of the current section 11(2) of the Act.

The new section 8 will re-enact section 9 of the Act but will make it clear that if the prosecutor withdraws charges before an accused person has pleaded, he may be charged again with the same offence.  The new section 10 will make it clear that once a decision has been made not to prosecute an accused person who is in custody, the ProsecutorGeneral can order the person’s release without applying to a court;  the section re-enacts section 10 of the Act.

The new section 9 re-enacts the existing section 9A of the Act, which vests in the Prosecutor-General the power to prosecute for the offence known as “scandalising the court”, i.e. committing contempt of court outside a courtroom.

The new section 11A will require the Prosecutor-General to consult the Judicial Service Commission, the Law Society and other interested persons and bodies when in terms of section 260(1) of the Constitution he or she formulates the principles on which he or she decides whether and how to institute and conduct criminal proceedings. The statement of principles will have to be reviewed at least once every two years, and published as widely as practicable so that lawyers and other interested persons are aware of it;  copies will have to be kept for inspection by the public at the offices of the National Prosecuting Authority.

Clause 5

Section 14 of the Act sets out a list of people who are entitled to prosecute crimes in their private capacity.  Husbands are allowed to prosecute crimes committed against their wives, and widows can prosecute people responsible for killing their husbands. This clause will make the section gender neutral:  married people, whatever their gender, will be allowed to prosecute crimes committed against their spouses, and both widows and widowers will be able to prosecute their spouses’ killers.

Clause 6

Under section 16 of the Act, no one can institute a private prosecution unless the Prosecutor-General has issued a certificate stating that he or she does not intend to prosecute the case in the name of the State.  This clause will remove any suggestion that the Prosecutor-General is compelled (despite being constitutionally mandated to initiate or discontinue all prosecutions) to issue such a certificate.  It also prohibits any corporate body or registered or unregistered association from applying for or receiving such a certificate.

Clause 7

Section 17 of the Act states that a person who wants to institute a private prosecution in the High Court must deposit a sum of money as well as providing sureties to pay further amounts, as a guarantee that he or she will institute the prosecution without delay.  The clause also requires him or her to give security for payment of the costs of the person who is to be prosecuted, in the event that the prosecution is unsuccessful.

Giving security for the accused person’s costs is an adequate safeguard against frivolous private prosecutions, so this clause will repeal the requirement to make a deposit and provide sureties.

Clause 8

Section 28 of the Act allows private persons (i.e. persons who are not peace officers) to arrest people “engaged in an affray”, which simply means fighting in a public place.  This clause will make the meaning of the section clear.

Clause 9

Section 32 of the Act states that suspects who have been arrested without an arrest warrant may be kept in custody for 48 hours before being brought to court for remand, but that the period may be extended if it ends on a Saturday, Sunday or public holiday or if a justice of the peace (often a senior police officer) extends it by warrant.  Section 50(2) of the Constitution, on the other hand, prohibits any extension of the 48-hour period.

Section 32 also states that if a suspect has been arrested for a serious offence set out in the Third or Ninth Schedules to the Act, the court remanding a suspect cannot order his or her release on bail for 21 days.  Section 50(1)(d) of the Constitution, however, gives all suspects a right to be released from detention pending trial unless there are compelling reasons justifying their continued detention.

This clause will amend the section to bring it into line with the Constitution.  It will also require remand proceedings to be held in open court (see the new subsection (1)).

Clause 10

Sections 33 to 36 of the Act deal with the issue of warrants of arrest and their execution, i.e. the arrest of suspects in terms of warrants.  In particular, section 33 gives judges, magistrates justices of the peace (who are often police officers) the power to issue warrants.  This clause will make it clear that warrants of arrest cannot be issued for any purpose of the Act by justices of the peace who are serving police officers.

Clause 11

The new section 35 allows persons to be arrested on the authority of warrants which have been transmitted by electronic means such as e-mails.

Clause 12

This clause will insert three new sections into the Act.

The new section 39A, provides for “voluntary attendance at a police station or charge office”. This provision allows a person who willingly goes to the police station or charge office for purposes of assisting the police with investigations to leave the police station or charge office at will. The only time he or she will be deprived of his or her liberty is in instances where a decision to arrest him or her has been made. Previously, no provision provided for persons who were invited by the police to assist with investigations, some of whom ended up as state witnesses. Any confession or incriminating statements made by such person shall be admissible in evidence against such person or an accused (new section 39C(a)).   The new section 39B provides for the physical restraint, removal and detention of certain persons in specified circumstances by a police officer acting in pursuance of his or her socially protective function, that is to say, without necessarily having the intention to arrest and charge a person for a criminal offence.  The persons in question may be detained without warrant at a charge office or police station for not more than twenty-four hours, if they are not in their sound and sober senses in a public place, or in a private place if, say, the husband or wife of an abusive spouse not in his or her sober senses requests the intervention of the police to temporarily restrain the abusive spouse from the home, or in instances where compelling reasons exist (such as, for instance, removing resistant persons from areas threatened by flooding if their safety is endangered). These provisions will protect the police from lawsuits on the grounds of unlawful detention in such socially exigent circumstances. The new section 39C(b) provides that any confession or incriminating statements made by such person will not be admissible in evidence against such person or an accused.

Clause 13

This clause will provide for the taking of a bodily or buccal sample by a trained person for purposes of forensic DNA analysis which is a very new area in our law and which had not previously been provided for.

Clause 14

This clause seeks to insert a new section 41A, which provides for the information of arrested persons of their rights. Section 50 of the Constitution makes it a requirement that arrested persons be informed of their rights in a language they understand. Where an accused person has been informed of his or her rights in the English language, it shall be presumed that he or she was informed in a language he or she understands unless the contrary is proved. It means that the burden shall shift upon the accused to prove otherwise.  The clause provides for the right to silence, the right to a legal practitioner of choice and the right to one telephone call to any person of their choice. In addition it seeks to make it clear that a telephone call constitutes one where there is a successful conversation with the person called.

 

The clause also seeks to insert a new section 41B that provides for the taking of a bodily or buccal sample by an authorised person. An authorised person, being a health practitioner, medical officer or any other person who has successfully undergone the relevant training to take such sample. It goes further to provide for the issuing of a warrant of arrest by a judge, upon written request by a police officer of or above the rank of inspector, in a situation where the required person does not consent to the taking of such a sample and the use of reasonable force where he resists such taking. The provision goes further to provide for the admissibility of a sworn affidavit deposed to by an authorised person on its mere production as prima facie evidence of the facts deposed therein.  This is a new area in our law which had previously not been provided for and is a necessary provision.

The new section 41C will oblige police officers to keep proper records of persons who have been arrested and detained.  The records will be kept at each police station or charge office, showing who has been arrested and detained, when they were arrested or detained, when they were released, and—if they have been transferred elsewhere, for example to court or a prison—when and to where they were transferred.  The records will be available for inspection by lawyers and other interested persons.

The new section 41D re-enacts the current section 41(2) to (5) of the Act without change, except to provide for the taking of saliva and tissue samples (at present only blood samples may be taken) and to state that all body searches must be conducted decently, whether the person being searched is male or female (at present only females have to be searched decently).

Clause 15

Section 42(2) of the Act permits the killing of persons who resist arrest or attempt to escape arrest.  Under section 86(3) of the Constitution the right to life cannot be limited by any law (except to the extent specified in section 48).

Amendment of Part VI of Act (clauses 16 to 27)

These clauses amend the provisos of the Act relating to the seizure of articles used to commit offences, or which may be produced in court as exhibits.  The provisions (found in the Act in Part VI , titled “Search Warrants, Seizure, Detention and Disposal of Property Connected with Offences & Custody of Women Unlawfully Detained for Immoral Purposes”) have not been substantially revised since 1975, and need improvement to protect both the police and the persons from whom the police seize the articles.

Clause 16

This clause substitutes the interpretation section of Part VI of the Act by a mere expansive set of definitions, including definitions for “articles whose possession is intrinsically unlawful” and “full receipt” (in relation to an article seized in terms of Part VI).

Clause 17

This clause amends section 49 of the Act, which invests the State with the general power to seize articles used to commit offences, or which may be produced in court as exhibits.  New subsections are sought to be added that requires a police officer to give a full receipt for any article so seized, whether or not the seizure was done under a warrant.  Any police officer who fails to do so will commit an offence, unless the article in question is one whose possession is intrinsically unlawful (for example, a dangerous drug or weapon of war).

Clause 18

This clause amends section 50 of the Act, which provides for the circumstances in which an article may be seized under a warrant.  The two changes made by this clause are described below.

Firstly, if such a warrant is sought from a justice of the peace instead of a magistrate, it must be sought from a justice of the peace who is not himself or herself a police officer.

Secondly, section 50(4) of the Act states that a police officer who carries out a search under a search warrant must give a copy of the warrant to anyone whose rights have been affected by the search and who asks for it—but he or she must do so only after the search has been completed.  This clause will amend the section to oblige the police officer to hand over a copy of the warrant before conducting a search.

Clause 19

This clause amends section 51 of the Act, which provides for the circumstances in which an article may be seized without a warrant.  It will require a police officer who seizes anything from a person (whether that person is a suspect in a criminal offence or not) to furnish that person upon his or her demand with the particulars of his or her name, rank and number, and the reasons for carrying out the search and seizure without warrant.  Any police officer who fails to do so will commit an offence.

Clause 20

Section 52(2) of the Act gives police officers power to stop people found carrying goods at night.  If anyone so stopped cannot give a satisfactory explanation for having the goods, the police officer can convey the person to a police station or prison and detain him or her until the next sitting of a magistrates court.  This clause will replace subsection (2) by other provisions that require, firstly, that a person so stopped cannot be detained unless he or she is suspected of committing an offence; and secondly, which ensures that people arrested under the section are accorded their constitutional rights.

Clause 21

This clause amends section 54 of the Act, which empowers a police officer to enter without warrant any premises (other than a dwelling house) in order to obtain evidence of the commission of an offence by way of interrogation of any person therein present and the examination of any books, records or other documents.  The amendment will require a police officer subjecting any person to these powers (whether that person is a suspect in a criminal offence or not) to furnish that person upon his or her demand with the particulars of his or her name, rank and number, and the reasons for carrying out the search and seizure without warrant.  Any police officer who fails to do so will commit an offence.

Clause 22

This clause will repeal section 58 (relating to the disposal or return of seized articles) by two new sections comprehensively dealing with this issue.  The new section 58 details the manner in which such articles must be accounted for, by requiring them to be entered in an inventory at the place of custody with distinctive numbers assigned to them.  The articles in question may then be held (subject to the new section 59) until the conclusion of the criminal proceedings in relation to them.  Stolen property may be returned to the owner only if undertakings are made for their production as exhibits at any resultant criminal proceeding, otherwise they will also be kept in police custody. The new section also adds extra safeguards against the unwarranted destruction of seized articles without the knowledge of the lawful owner thereof.  Such owners must be notified by the police beforehand in the event that the police intend to destroy them for being perishable or a hazard to health (and there is some valid reason for not returning the articles to the owners).  The owner concerned is given an opportunity to object to this course of action, whereupon the police must obtain from a magistrate or justice of the peace a “warrant of destruction or disposal of a seized article”, at the application for which the owner is given an opportunity to be present and oppose.  The foregoing provisions do not, however, apply to seized article whose possession is intrinsically unlawful, for which special provision is made in the new section 63A.

The new section 58A allows the police to retain seized article for 21 working days, after which, unless criminal proceedings in relation thereto have earlier been instituted, they must notify the owner thereof in writing  that they intend to retain such article until the relevant criminal proceedings are instituted and concluded.  The owner concerned is given an opportunity to object to the continued retention of his or her property, whereupon the police must obtain from a magistrate or justice of the peace a “warrant of further retention of the seized article”, at the application for which the owner is given an opportunity to be present and oppose.  The foregoing provisions do not, however, apply to seized article whose possession is intrinsically unlawful.

Clauses 23 and 25

This clause amends sections 59 and 62 of the Act.  Section 59 provides for cases where an article has been seized and it transpires that no criminal proceedings are instituted, or that it is not required to be produced as an exhibit.  If, in such a case, the article in question has in the meantime been forfeited to the State and disposed of by the police and it is proved later that the ownership of the article in question is vested in an owner, provision is made for compensation to be made to that owner.  Section 62 provides for the forfeiture of seized articles to the State upon the conclusion of criminal proceedings and their retention for a period of 3 years thereafter to enable a judicial inquiry to be held, upon the application of any person (other than the accused) who claims that any right in the forfeited article is vested in him or her.  If such claim is proved, provision is made for compensation to be made to that owner.  In both sections a new subsection is sought to be inserted to safeguard the State’s interests in cases where the compensating court finds that there has been negligence or undue dilatoriness on the part of the owner in pursuing his or her title to the article in question.

Clause 26

Section 62A of the Act provides that on convicting a person of bribery a court can give summary judgment in favour of the complainant or the State for the amount of the bribe received by the convicted person. The proviso to subsection (3) of the section states that if summary judgment is ordered by a regional magistrates court, the order must be forwarded to a provincial magistrates court in order to be executed. The proviso was enacted when regional magistrates had no civil jurisdiction and could not give orders of summary judgment. Now that they have such jurisdiction there is no need for their orders to be enforced in a provincial magistrates court. This clause will therefore repeal the proviso.

Clause 27

This clause will provide for forfeiture and disposal of seized articles whose possession is intrinsically unlawful.  It provides for the forfeiture to the State of such articles, either automatically within 3 months (if no criminal proceedings are instituted in relation thereto, or are abandoned or withdrawn) or upon the successful conclusion of criminal proceedings.  In certain cases, however, such articles may be destroyed before forfeiture if they are too hazardous or dangerous to be removed or kept in custody, in which event a record of that fact must be made in the occurrence book of the police station at or nearest which they are destroyed.  In all other cases, the destruction or disposal of these articles is provided for in a transparent manner, that is to say, in the presence of the Prosecutor-General (or his or her delegate), and of the representative of any agency of the State having any statutory responsibility in respect of the seized article.  This more or less follows the current practice with respect to the destruction of dangerous drugs.

The new clause 63B provides for the admissibility in evidence of certain documents issued for the purposes of Part VI of the Act.

Clause 28

Sections 66 and 67 of the Act set out the procedure for bringing accused persons to trial in the High Court.  Essentially, the accused is brought before a magistrate, served with papers informing him or her of the charge he will face and summarising the evidence against him or her, and then sent for trial before the High Court.  Among the papers he or she is given is a notice asking him or her to give an outline of his or her defence and a list of his defence witnesses, and informing him that if in his or her outline he or she fails to mention any fact which he or she might be expected to mention that failure may be held against him or her at his trial and be regarded as corroboration of the prosecution case.  An unrepresented accused person may be brought before a magistrate and questioned in order to elicit his or her defence.

This clause seeks to repeal subsection (6) of section 66 and substitute it with a provision that provides for the procedure to be followed during the committal of an accused person in light of the right to silence and the consequences of exercising or not exercising that right.

Clause 29

Sections 116, 117 and 117A of the Act deal respectively with the grant of bail, accused persons’ entitlement to bail and the way in which bail applications are made.

The new clause 115C will preface these provisions by clarifying what are “compelling reasons” mentioned by the new Constitution as grounds for denying a detained person his or her freedom under bail.  It also provides for the burden of proof in bail proceedings.  The section will state what is generally accepted as the current law, particularly in view of section 50(1)(d) of the Constitution.

Clause 30

Section 127 of the Act empowers peace officers to arrest persons who have been released on bail if they reasonably suspect the persons are going to abscond or interfere with evidence.  This clause will amend the section to provide that the persons so arrested must be told at the time of their arrest why they are being arrested (as required by section 50(1)(a) of the Constitution) and must be brought before a court within 48 hours (as required by section 50(2) of the Constitution).

Clause 31

This clause will update references in section 136(2) of the Act to the AttorneyGeneral and the Attorney-General’s Office.

Clause 32

Section 154 of the Act sets out the wording for charges of murder and culpable homicide.  The wording is obsolete, since both those offences, which were formerly common-law crimes, are now statutory offences described in sections 47 and 49 respectively of the Criminal Law Code.  This clause will repeal section 154.  The repeal means that charges of murder and culpable homicide will have to follow the words used to describe those offences in the Criminal Law Code.

Clause 33

This clause will update references in section 157 of the Act to the common-law crimes of uttering forged documents and theft by false pretences.  These crimes are now part of the statutory crime of fraud as provided by sections 113(4) and 136 of the Criminal Law Code.

Clause 34

This clause will insert a new section 163A into the Act, obliging magistrates to inform accused persons of their right, under section 70(1)(d) of the Constitution and section 191 of the Act, to be represented by a legal practitioner.  magistrates will not have to inform accused persons of this if they are already legally represented or have already been informed of the right or if there is no reasonable prospect of their being prejudiced through lack of legal representation.

Accused persons who are committed for trial in the High Court will be informed of their right to legal representation in terms of section 66 of the Act as amended by clause 24.

Clause 35

This clause will insert a new section 167A into the Act, which will oblige courts to investigate undue delays in criminal proceedings.  If a court finds that in any particular case the delay has been unreasonable and has caused prejudice, the court will have power to make remedial orders including those set out in the new subsection (3).  A court will, for example, be empowered to refuse any further postponements or remands, or to impose conditions on further postponements, or to order a permanent stay of prosecution. This last order will enforce an accused person’s right to a trial within a reasonable time, guaranteed by section 69(1) of the Constitution.  It will also be possible for a court to order anyone responsible for an undue delay to pay the costs of the other side.

Clause 36

Section 180 of the Act sets out the pleas, apart from “guilty” and “not guilty”, which an accused person can tender on being charged with an offence.  This clause will add some new pleas:

  • That the accused was given an immunity from prosecution after giving evidence for the State as an accomplice.
  • That the accused has been granted a permanent stay of prosecution under the new section 167A (see clause 43) or is entitled to such a stay.

Clauses 37

Section 188 of the Act states that after an accused has pleaded not guilty in a magistrates court, the magistrate must ask the accused to outline his or her defence, and must explain that if the accused omits to mention anything that he or she might be expected to have mentioned, then in terms of section 189(2) of the Act the magistrate may draw adverse inferences and convict the accused accordingly.  Clause 50 will therefore amend section 188 by obliging a magistrate, when requesting an accused to outline his or her defence, to inform the accused of the right to remain silent and the consequences of exercising that right.

Clause 38

Section 194(5) of the Act contains a cross-reference to provisions which were repealed in 2006 because they conferred powers on courts holding preparatory examinations, a procedure which has been abolished.  The provisions will be re-enacted by clause 63.

Clause 39

This clause seeks to insert a new section 258A which provides for the admissibility of illegally obtained evidence.  It seeks to guide the courts during the exercise of their discretion for the need to strike a balance between the rights of the individual and the abuses of the law by police, the victim of crime and the public interest. The provision partly takes its wording from the provisions of section 86 of the Constitution, on limitations of rights and freedoms.

Clause 40

This clause will insert a new section in the Act which, as explained above in relation to clause 54, will re-enact with modification provisions that were accidentally repealed in 2006.

Clause 41

This clause will insert a new section 334A into the Act, which will give the Judicial Service Commission power to convene judicial conferences which will formulate sentencing guidelines in order to bring about uniformity of sentencing by criminal courts in Zimbabwe.  Courts will not be absolutely bound to follow the guidelines, but if a court departs from them when imposing sentence the court will have to record its reasons for doing so.

Clauses 42 and 43

Sections 336 to 342 of the Act provide for the imposition of the death penalty. This punishment, as provided for in the Act, is unconstitutional.

Section 48 of the Constitution protects the right to life but states that “a law may permit the death penalty to be imposed.”  The Constitution itself does not impose the death penalty;  it only allows a law to do so, and if a law does provide for the death penalty the law must make its imposition subject to certain restrictions:

  • The penalty can be imposed only for murder committed in aggravating circumstances (section 339 of the Act, on the other hand, envisages it being imposed for other offences).
  • It cannot be made a mandatory penalty (under section 337 of the Act, by contrast, it is mandatory for murder unless there are extenuating circumstances).
  • It cannot be imposed on women (under sections 338 and 341 of the Act it can be imposed on persons of either sex between the ages of 18 and 70);
  • It cannot be imposed until the convicted person has had an opportunity to seek a pardon from the President.

As indicated above, the sections of the Act which provide for the death penalty do not contain the restrictions which section 48 of the Constitution states must be provided for if the death penalty is to be constitutional.

Clause 42 will therefore amend section 336, which sets out the punishments that courts may impose, by amending references to the death penalty.

Clause 43 will repeal sections 337 and 338 of the Act and replace them by provisions in conformity with the new Constitution.

Clause 44

This clause seeks to provide for the rights of arrested or detained persons.  It provides for the definitions of “interested party”, who can be a relative, friend or employer or any person with a legitimate interest in the detained person. “Responsible person” is defined as a member of a State agency which can be the police, defence forces, prison service and so forth.  All these definitions are terms that have been adopted from the Constitution. Section 50(7) of the Constitution provides for the rights of such interested persons to request information on the detained persons’ whereabouts and the reasons for the detention or custody.  The responsible person is obliged to respond favourably to such a request unless there are compelling reasons for not doing so and the proof of such compelling reasons rest on the responsible person.

Clause 45

This clause will amend section 389 of the Act to empower the minister of Justice, Legal and Parliamentary Affairs to make regulations prescribing:

  • The translation into the constitutionally recognised non-English languages of the form of any warning or information that must be given to arrested and detained persons that is contained in the new Tenth Schedule to be added to the Act;
  • the extent to which police officers and other peace officers may question suspects—the equivalent of what used to be called “Judges’ Rules”.

Clause 46

This clause seeks to update the First Schedule list of arrestable offences. Clause 47

This clause seeks to insert the Tenth Schedule. This schedule provides for the wording of the warning of rights that a police officer has to give to an accused person upon arrest.  This provision seeks to assist the police, and we are of the view that it can be translated into the 16 official languages so that every arrested person is informed of his or her  rights in a language which he or she understands as required by section 50 of the constitution.

This clause also seeks to add an Eleventh Schedule providing for the form of notice  issued by the police to owners of seized articles before such articles are destroyed or

disposed of by the police.

Clause 48 and Schedule to Bill

  This clause will make the minor and consequential amendments which are set out in the Schedule to the Bill.

Clause 49

This clause will amend the National Prosecuting Authority Act to provide for the post of Deputy Prosecutor General and effect certain minor and consequential amendments to that Act.

 

 

Criminal ProCedure and evidenCe amendment Bill
 

 

xii

 

                                                                       Bill

To amend the Criminal Procedure and Evidence Act [Chapter 9:07]; to amend the National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014); and to provide for matters connected therewith or incidental

5                    thereto.

ENACTED by the Parliament and the President of Zimbabwe.

 1 Short title and date of commencement

(1) This Act may be cited as the Criminal Procedure and Evidence Amendment Act, 2015.

10 (2) Subject to subsection (3), this Act shall come into operation on the date of its promulgation.

(3) Sections 16, 17, 20, 22, 23, 25, 27 and 47 (insofar as the insertion of the Eleventh Schedule is concerned) shall come into operation on the ninetieth day after the date of the promulgation of this Act.

15           2 Amendment of section 2 of Cap. 9:07

Section 2 (“Interpretation”) of the Criminal Procedure and Evidence Act [Chapter 9:07]

( hereinafter called “the principal Act”) is amended—

(a)   by the insertion of the following definitions—

““accused” or “accused person” means a person who has been arrested

20                                     for or charged with an offence;

“authorised person”, for the purposes of taking an intimate sample or buccal sample pursuant to section 41(3) or 41B, means a health

H.B. 2, 2015.]

Printed by the Government Printer, Harare

practitioner, medical officer or other person who has successfully undergone the relevant training to enable him or her to take a bodily sample;

“bodily sample” means an intimate or buccal sample taken from a

person;                                                                                     5

“buccal sample” means a sample of cellular material taken from the

inside of a person’s mouth for the purposes of conducting a forensic DNA analysis of that sample;

“compelling reasons”, for the purposes of—

(a) sections 39B(2)(b), 258A(2)(b) and 385A(3), means any       10

reason related to—

  • safeguarding the enjoyment of rights and not prejudicing

the rights and freedoms of other persons that might be put in immediate jeopardy; or

  • safeguarding the interests of defence, public safety, public 15

order, public health, regional or town planning or the general public interest, that might be put in immediate jeopardy;

(b) Part IX (“Bail”), shall be construed in accordance with

section 115C;                                                                   20

“DNA” means deoxyribonucleic acid;

“forensic DNA analysis”, in relation to an intimate or  buccal sample, means the identification in that sample of genetic sequences commonly called “markers” that are highly variable and particular

to each person;                                                                        25

“health practitioner” means any person in respect of whose profession

or calling a register is kept in terms of the Health Professions Act [Chapter 27:19];

“intimate sample” means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person; 30

“medical officer” means a health practitioner employed wholly or mainly or on a part-time basis by the Police Service, the Prisons and Correctional Service or other organ of  State, or a local authority;

“National Director of Public Prosecutions” means the National Director 35 of Public Prosecutions appointed in terms of section 8 of the National Prosecuting Authority Act [Chapter 7:20];

  • by the repeal of the definition of “public prosecutor” and the substitution

of—

““public prosecutor” means the Prosecutor-General or a person who 40 has the Prosecutor-General’s authority to institute and conduct criminal proceedings on behalf of the State;”;

  • by the repeal of the definition of “statutory capital offence”.

 3 New Part substituted for Part II of Cap. 9:07

Part II of the principal Act is repealed and the following Part is substituted—        45

“Part ii

ProseCution on Behalf of state

5 Delegation of functions by Prosecutor-General

(1) Subject to the general or specific instructions of the Prosecutor-

5 General, the public prosecutor to whom responsibility for public prosecutions is assigned under the National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014), shall exercise all the rights and powers and perform all of the functions conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, insofar

10                                       as they relate to criminal proceedings.

(2) The Prosecutor-General may, when he or she deems it expedient, appoint any legal practitioner entitled to practise in Zimbabwe to exercise (subject to the general or specific instructions of the Prosecutor-General) all or any of the rights and powers or perform all or any of the functions

15 conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings.

(3) The officer referred to in subsection (1) or a legal practitioner

appointed in terms of subsection (2) may, subject to any conditions which

20                                       the Prosecutor-General may impose—

  • sign any certificate, authority or other document required or

authorised by an enactment referred to in those subsections; and

  • appoint a member of the National Prosecuting Authority

25                                                                      constituted in terms of the National Prosecuting Authority

Act [Chapter 7:20] (No. 5 of 2014), or a legal practitioner entitled to practise in Zimbabwe, as the case may be, to exercise the rights and powers or perform the functions delegated to him or her in terms of subsection (1) or (2), 30 and the provisions of this subsection shall apply, with such

changes as may be necessary, in respect of that appointment.”.

6  National Director of Public Prosecutions

There shall be a National Director of Public Prosecutions appointed

in terms of section 8 of the National Prosecuting Authority Act [Chapter 7:20]

35                                       (No. 5 of 2014).

  • Change of prosecutor

Criminal proceedings instituted on behalf of the State by one public prosecutor may be continued by any other public prosecutor.

  • Power to stop public prosecutions

40   The Prosecutor-General, or any person conducting criminal proceedings on behalf of the State may—

(a) before an accused pleads to a charge, withdraw that charge,

in which event the accused shall not be entitled to a verdict of acquittal in respect of that charge;

45 (b) at any time after an accused has pleaded to a charge, but before conviction, stop the prosecution in respect of that charge, in which event the court trying the accused shall acquit the accused in respect of that charge.

  • Prosecutions for contempt of court proceedings
    • A court or tribunal may, on its own motion, institute proceedings for contempt of court against any person who is alleged to have impaired its dignity, reputation or authority in the presence of the

court or tribunal.                                                                                  5

  • No court, tribunal or person, other than the Prosecutor-General or someone acting on the express authority of the Prosecutor-General, shall institute or continue any proceedings for contempt of court against anyone who is alleged to have impaired the dignity, reputation or authority of a court or tribunal in circumstances other than those referred to in 10 subsection (1).
  • Nothing in this section shall affect the institution of proceedings for contempt of court against any person for the purpose of enforcing any order of a court or tribunal.
  • Power of ordering liberation of persons committed for further 15            examination, sentence or trial

The Prosecutor-General may order the liberation of any person committed to prison for further examination, sentence or trial and for that liberation a document setting forth that the Prosecutor-General sees no grounds for prosecuting such person and signed by him or her shall 20 be a sufficient warrant.

  • Functions of local public prosecutor
    • All public prosecutors attached to a magistrates court are,

as representatives of the Prosecutor-General and subject to his or her instructions, charged with the duty of prosecuting in that magistrates 25 court, in the name and on behalf of Zimbabwe, all offences which, under any enactment governing magistrates courts or any other enactment, that magistrates court has jurisdiction to try.

  • Criminal proceedings instituted in a magistrates court by any local public prosecutor may be continued by any other public prosecutor. 30
  • When there is lodged with or made before a local public prosecutor a sworn declaration in writing by any person disclosing that any other person has committed an offence chargeable in the magistrates court to which such public prosecutor is attached, he or she shall determine

whether there are good grounds for prosecution or not:                            35

Provided that—

  • he or she may refer to the Prosecutor-General the question whether he or she shall prosecute or not;
  • any other person may be specially authorized by the

Prosecutor-General to prosecute in the matter.              40

11A  Publication of principles on which decisions to prosecute are

based

  • The Prosecutor-General shall, at intervals of not more than two years, review the statement which he or she is required by section 260(2) of the Constitution to formulate, and which sets out the principles 45 by which he or she decides whether and how to institute and conduct criminal proceedings.

 

  • When formulating or reviewing the principles by which he or she decides whether and how to institute and conduct criminal proceedings in terms of section 260(2) of the Constitution, the Prosecutor-General shall consult—
    • the Judicial Service Commission; and
    • the Law Society of Zimbabwe; and
    • such other persons and bodies as he or she thinks appropriate; and while he or she shall not be bound to adopt any recommendation made by those persons and bodies, he or she shall pay due regard to them.

10  (3) The Prosecutor-General shall ensure that the statement of principles referred to in subsection (1) is published as widely as practicable, and in particular shall ensure that copies of the statement, as amended from time to time, are kept at all offices of the National Prosecuting Authority and are available for inspection there by members of the public at all

15                                       reasonable times during office hours.”.

 4 Amendment of section 14 of Cap. 9:07

Section 14 (“What other persons entitled to prosecute”) of the principal Act is amended—

(a)    by the repeal of paragraph (a) and the substitution of—

20                             “(a) a spouse of the person against whom the offence was committed;”;

(b) in paragraph (c) by the deletion of “wife” wherever it occurs and the substitution of “surviving spouse”.

 6 Amendment of section 16 of Cap. 9:07

Section 16 (“Certificate of Attorney-General that he declines to prosecute”)(1) of 25 the principal Act is amended—

  • by deletion of “he shall, at the request of the party intending to prosecute, grant the certificate required” and the substitution of “he or she may, at the request of the party intending to prosecute, grant the certificate required”;
  • by the insertion of the following proviso thereto—

 

30   “Provided that the Prosecutor General may only grant such a certificate to an individual, or to a representative of a class of individuals recognised as a class for the purposes of the Class Actions Act [Chapter 8:17] (No. 10 of 1999).”.

 7 New section substituted for section 17 of Cap. 9:07

Section 17 of the principal Act is repealed and the following is substituted—

35                          “17  Private prosecutor may be ordered to give security for costs

Where a private prosecution is being or has been instituted by a person other than a public body or person described in section 14(d), the court may order him or her to give such security as the court may direct for the payment of any costs incurred by the accused person in respect of 40   his or her defence, and where the court has made such an order no further steps shall be taken in the prosecution until the security has been given.”.

  • Amendment of section 28 of Cap. 9:07

Section 28 of the principal Act is repealed and substituted by—

“28  Arrest by private persons of persons fighting in public places

Any private person is authorised to arrest without warrant any person

whom he or she sees engaged in fighting in a public place in order to        5

prevent such person from continuing the fight, and to deliver him or her

over to a police officer to be dealt with according to law.”.

  • Amendment of section 32 of Cap. 9:07

Section 32 (“Procedure after arrest without warrant”) of the principal Act is

amended by the repeal of subsection (3) and the substitution of—                                10

“(3) Any person who is arrested or detained—

  • for the purpose of bringing him or her before a court; or
  • 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, 15

as the case may be, whether or not the period ends on Sunday or a public holiday.”;

  • Amendment of section 33 of Cap. 9:07

Section 33 (“Warrant of arrest by judge, magistrate or justice”)(1) of the principal

Act is amended by the deletion of “Any judge, magistrate or justice may issue” and the

substitution of “Any judge, magistrate or justice (other than a police officer) may issue”.  20

  • New section substituted for section 35 of Cap. 9:07

Section 35  of the principal Act is repealed and the following is substituted—

“35  Arrest on wireless or telegraphic transmission of warrant

A communication which—

  • sets out or substantially outlines the terms of a warrant 25

issued in terms of section 33;  and

  • is sent or communicated electronically or in an official

publication;

shall be sufficient authority for the arrest of the person named in the

warrant as if it were the original warrant.”.                                             30

  • New sections inserted in Cap. 9:07

The principal Act is amended by the insertion after section 39 of the following

sections—

“39A  Voluntary attendance at police station or charge office

Where for purposes of assisting the police with an investigation a     35

person attends voluntarily at a police station or charge office or voluntarily

accompanies a police officer to a police station or charge office without

having been arrested—

  • he or she shall be entitled to leave the police station or

charge office at will unless he or she is placed under arrest;    40

                                      and

  • he or she shall be informed promptly that he or she is under

arrest if a decision is taken to arrest him or her on reasonable suspicion that he or she has committed an offence.

39B  Police officers may restrain, etc., persons in certain circumstances without intention to arrest

(1)  In the exercise of a police officer’s socially protective function, a police officer may—

    (a) without intending to charge a person with an offence or without having formed the intention to charge a person with an offence;  and
    (b) by the of use such force as is reasonably justifiable and proportionate in the circumstances of the case (but never
10     by the use of lethal force) to overcome any resistance on the part of the person concerned or to prevent the person concerned from escaping;

physically restrain a person and remove him or her to a police station or charge office, and there detain that person for a period of not more than

15                                      twenty-four hours, in either of the circumstances specified in subsection

(2).

(2)  A police officer may exercise the powers referred to in subsection (1) in either of the following circumstances—

    (a) where the person concerned is found not to be in his or her
20

25

 

 

 

 

 

(b) sound or sober senses (whether by reason of intoxication or a mental disorder or defect)—

(i)        in a public place; or

(ii)       in a private place or private residence where the owner or any lawful occupier thereof requests the intervention

    of a police officer;

or

where there are compelling reasons (the proof whereof rests with the police officer concerned) for so restraining, removing and detaining the person concerned:

30                                    Provided that if a decision to charge a person so restrained, removed

and detained with an offence is not made within twenty-four hours, the person must be released unconditionally no later than the expiry of that period.

39C Admissibility of incriminating statements made while in voluntary attendance or under restraint at police station, etc.

35   Any confession of the commission of an offence or other incriminating statement made by a person—

(a)   while in voluntary attendance at a police station or charge

office in terms of section 39A shall be admissible in evidence against such person or against an accused in any court;

40 (b) who is restrained, removed and detained in terms of section 39B shall not be admissible in evidence against such person or against an accused in any court.”.

13 Amendment of section 41 of Cap. 9:07

Section 41 (“Arrest—how made, and search thereon of person arrested”)(3) of 45 the principal Act is repealed and substituted by—

 

“(3) Any peace officer may take or cause to be taken the finger-prints, palm-

prints, footprints and photographs of any person arrested upon any charge, and may

take or cause to be taken such steps as he or she may think necessary in order to

ascertain whether or not the body of any such person bears any mark, characteristic

or distinguishing feature, or shows any condition or appearance:                                5

Provided that no intimate or buccal sample may be taken from the person

who has been arrested except—

  • in case of a buccal sample, by an authorised person at the request and

in the presence of the peace officer;  or

  • in the case of an intimate sample— 10
    • by a medical officer at the written request of a police officer of

or above the rank of superintendent;  or

  • by the medical officer of any prison at which the arrested person

is detained; or

  • by an authorised person of the same sex as the person from whom 15

                              the intimate sample is to be taken;

in order to ascertain some fact which is material to the investigation of the charge

upon which such person has been arrested.”.

14 New sections inserted in Cap. 9:07

The principal Act is amended by the insertion after section 41 of the following      20

sections—

“41A  Arrested person to be informed of his or her rights

(1) Subject to this section, where a person has been arrested

by a peace officer, whether with or without a warrant, the peace officer

shall cause the person to be informed promptly, in a language he or she     25

understands, of—

  • the reason for the arrest; and
  • his or her right to remain silent; and
  • the consequences of remaining silent and of not remaining

                                      silent; and                                                                        30

  • his or her right to contact, at the state’s expense, any one of

                                      the following—

  • a legal practitioner of his or her choice; or
  • a medical practitioner of his or her choice; or
  • his or her spouse or partner; or 35
  • his or her relative of choice ; or
  • anyone else of his or her choice;

for the purpose of informing the person contacted about

the arrest.

(2)  Where a person has been informed of his or her rights referred   40

to in subsection (1) in the English language, it shall be presumed, unless

the contrary is proved, that he or she was informed of his or her rights in

a language he or she understands.

  • For the purposes of subsection (1)(d), if an arrested person does not succeed, without any fault on his or her part, in contacting a person of his or her first choice, the arrested person shall be allowed an opportunity to

contact any other person until he or she succeeds in contacting him or her.

  • The Tenth Schedule shall guide a peace officer as to the form of the words to be used for the purposes of subsection (1).
  • Where a person has been arrested by a private person in terms of this Act or any other enactment, the private person must as soon as possible deliver the arrested person over to a police officer, who must

10 then, as soon as he or she is satisfied that the arrest is justified, cause the arrested person to be informed of his or her rights in the manner provided in subsection (1).

(6) Every person concerned in the arrest of another person, under

this Act or any other enactment and whether the arrest is with or without

15                              warrant, shall ensure that the arrested person is—

  • treated humanely and with respect for his or her inherent

dignity;  and

  • permitted to challenge the lawfulness of the arrest in person

before a court;  and

20                                     (c)   released promptly if the arrest is unlawful.

(7) A person who has been detained following an arrest, under this Act or any other enactment and whether with or without warrant, shall be accorded, by the person for the time being in charge of the place where he or she is being detained, the right to—

25                                                                         (a)        be informed promptly of the reason for his or her detention; and

 

(b) consult in private with a registered legal practitioner of his or her choice, and to be informed of this right promptly; and

30                                     (c)   communicate with, and be visited by—

  • a spouse or partner; and
  • a relative; and
  • a religious counsellor of his or her choice; and
  • a registered legal practitioner of his or her choice; and

35            (v)        a registered medical practitioner of his or her choice;          and

(vi) subject to any reasonable restrictions imposed for the

proper administration of the place of detention, any

other person of his or her choice;

40                                             and to be informed of this right promptly;  and

(d) to remain silent and to be informed of this right, and of the

consequences of exercising or not exercising this right, if there is reason to believe that he or she may not be aware of it.

(8) The person for the time being in charge of the place where a

45                                   person is being detained following his or her arrest, under this Act or any

other enactment and whether with or without warrant, shall ensure that the  conditions of detention are consistent with human dignity, including—

 

  • the affording of a reasonable opportunity for the detained

                                               person to engage in physical exercise;  and

  • the right of the detained person to wear clothing of his or

                                               her choice, unless—

  • the exercise of the right is likely to prejudice his or her 5

health or the reasonable requirements of discipline in

                                                        the place where he or she is detained;  or

  • the clothing is required for the purposes of any

investigation or inquiry;

whereupon, in either case, he or she must be provided with    10

                                               decent alternative clothing to wear;  and

(c)    the provision, at State expense, of—

  • adequate accommodation; and
  • adequate ablution facilities and other facilities for

maintaining personal hygiene; and                              15

  • adequate nutrition; and
  • appropriate reading material; and
  • adequate medical treatment; and
  • such other facilities as may be prescribed.

(9) A person who is being detained following his or her arrest,     20

under this Act or any other enactment and whether with or without warrant,

shall be entitled to challenge the lawfulness of the detention in person

before a court, and the person for the time being in charge of the place

where he or she is being detained shall cause him or her to be informed

of this right promptly.                                                                          25

41B Bodily samples for investigation purposes

(1)  An authorised person may take a bodily sample of a person

or group of persons, or supervise the taking of a bodily sample from any

person or group of persons, if the person or persons concerned consent

to such sample being taken at the verbal or written request of a peace      30

officer who is satisfied that there are reasonable grounds—

  • to suspect that the person, or any one or more persons in a

group of persons, has committed an offence; or

  • for believing that the bodily sample and the resulting forensic

DNA analysis thereof will be of value in the investigation of   35

an offence by excluding or including one or more persons

as possible perpetrators of the offence.

(2)  If a person does not consent to the taking of a bodily sample,

a warrant may be issued by a judge or magistrate upon written request

by a police officer who is of or above the rank of inspector, if it appears    40

from written information given by the police officer under oath that there

are reasonable grounds—

  • to suspect that the person named in the information, or any

one or  more persons in a  group of persons so named, has committed an offence; or

  • for believing that the bodily sample and the resulting forensic DNA analysis thereof will be of value in the investigation

of an offence by excluding or including one or more named

persons as possible perpetrators of the offence.

(3)  A bodily sample must be taken—

(a) by an authorised person or by a person under the supervision   5 and in the presence of the authorised person; and  (b) with strict regard for decency and decorum:

Provided that no intimate or buccal sample may be taken from the person who has been arrested except—

(a) in case of a buccal sample, by an authorised person at

10                                                                         the request and in the presence of the peace officer;

or

(b)    in the case of an intimate sample, in private by—

(i) a medical officer at the written request of a police officer of or above the rank of superintendent;  or

15 (ii) the medical officer of any prison at which the arrested person is detained;  or

(iii) by an authorised person of the same sex as the

person from whom the intimate sample is to be taken;

20 in order to ascertain some fact which is material to the investigation of the charge upon which such person has been arrested.

 

(4)  If in any criminal proceedings, the results of a forensic DNA analysis of a bodily sample are embodied in an affidavit sworn to by an authorised person in which that person deposes to the following facts—

 

25 (a) that he or she is an authorised person who is qualified to  undertake forensic DNA analysis of bodily samples; and

(b) that the bodily sample was obtained by that person or by another named authorised person under the supervision of the first named person under conditions which safeguard

30 as much as is reasonably possible against the possibility of the contamination of that sample;

such affidavit shall, upon its mere production, be admissible as prima facie proof of the facts deposed therein.”.

 

(5) Any bodily sample taken from a person and the records of 35 any steps taken under this section shall, in the case of—

(a) an accused person, be destroyed if he or she has been found not guilty at his or her trial, or his or her conviction is set aside by a superior court, or the charge against him or her is withdrawn, unless the person consents in writing to the

40                                                          preservation of the bodily sample;

(b) a person other than an accused person, be retained until the criminal proceedings to which they are relevant have been finally concluded, whereupon they shall be destroyed, unless the person consents in writing to the preservation of

45                                                          the bodily sample.

(6) A person referred to in subsection (5)(a) or (b) shall have the

right to receive written notification from the custodian of his or her bodily sample of the destruction thereof in accordance with that subsection.”.

41C Records to be kept of arrested and detained persons

  • The officer in charge of every police station or charge office   5

where persons are brought following their arrest, or where they are

detained, shall ensure that a record is kept showing, in respect of every

                   such person—

  • the person’s name and other identity particulars; and
  • the date and time on which the person was brought to the 10

police station or charge office or was first detained there,

                                      as the case may be;  and

  • the offence for which the person was arrested or detained;

and

  • where the person has been released, the date and time of 15

the release and the reasons for it; and

  • where the person has been transferred elsewhere—
    • the place to which he or she was transferred; and
    • the date and time of the transfer; and
    • the reasons for the transfer. 20
  • Every police officer at a police station or charge office where

records are required to be kept in terms of subsection (1) shall permit any

interested person, including a legal practitioner representing a person who

is believed to have been arrested or detained, to inspect the records at all

reasonable times.                                                                                 25

  • The officer in charge of a police station or charge office where

records are required to be kept in terms of subsection (1) shall ensure that

the records are kept there for at least  three years.”.

41D Search and examination of arrested person

  • A person who arrests another person, under this Act or any 30

other enactment and whether with or without warrant, may search that

person, and shall place in safe custody all articles, other than necessary

wearing apparel, found on him or her.

  • A peace officer may take or cause to be taken the finger-prints,

palm-prints, footprints and photographs of any person arrested upon any    35

charge, under this Act or any other enactment and whether with or without

warrant, and the medical officer of any prison or any medical officer of

the Ministry responsible for health or any peace officer may take a sample

of the arrested person’s blood, saliva or tissue or cause to be taken such

other steps as he or she may think necessary in order to ascertain whether    40

or not the body of the arrested person has any mark, characteristic or

distinguishing feature or shows any condition or appearance:

Provided that a blood, saliva or tissue sample shall only be taken by a medical officer at the request in writing of a police officer of or above the rank of superintendent, in order to ascertain some fact which is material to the investigation of the charge upon which the person has been arrested.

(3) Any search of the body of an arrested person in terms of this section shall be made—

  • by a medical officer; or
  • where it is not made by a medical officer, by any person

5                                                            who is of the same sex as the arrested person;

and shall be conducted with strict regard to decency and decorum.

(4) Any finger-prints, palm-prints, footprints, photographs or samples taken under this section, and the records of any steps taken under this section, shall be destroyed if the person concerned is found not guilty

10 at his or her trial or if his or her conviction is set aside by a superior court or if it is decided not to prosecute him or her or if the charge against him or her is withdrawn.

(5) Section 41B(6) applies, with such changes as may be necessary, to a person referred to in subsection (4).”.

15 15 New section substituted for section 42 of Cap. 9:07

Section 42 of the principal Act is repealed and substituted by—

“42 Resisting arrest

(1)  If any person who is authorised or required under this Act or any other enactment to arrest or assist in arresting another person, attempts

20 to make the arrest and the person whose arrest is attempted resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the person concerned cannot be arrested without the use of force, the person attempting the arrest may, in order to effect the arrest, use such force as may be reasonably justifiable 25 and proportionate in the circumstances to overcome the resistance or prevent the  person concerned from fleeing:

Provided that the person attempting the arrest is justified in terms of this section in using force against the person concerned only if the person sought to be arrested was committing or had committed, or was suspected

30 of having committed an offence referred to in the First Schedule, and the person attempting the arrest believes on reasonable grounds that—

(a) the force is immediately necessary for the purposes of protecting the person attempting the arrest, any person lawfully assisting the person attempting the arrest or any

35 other person from imminent or future death or grievous bodily harm; or

(b) there is a substantial risk that the suspect will cause imminent

or future death or grievous bodily harm if the arrest is delayed; or

40 (c) the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will

cause grievous bodily harm.

(2)  For the avoidance of doubt it is declared that no use of lethal

45 force for the purposes of subsection (1) shall be lawful unless there is strict compliance with the conditions specified therein.”.

 16 New section substituted for section 17 of Cap. 9:07

Section 47 of the principal Act is repealed and the following is substituted—

                  “47  Interpretation in Part VI

In this Part—

“article” includes any document or substance.                               5

“articles whose possession is intrinsically unlawful” means

harmful liquids, dangerous drugs, child pornography as

defined in the Trafficking in Persons Act, adult pornography

whose possession is prohibited under the Censorship

and Entertainments Control Act, unlicensed firearms and      10

ammunition, arms or weapons of war, explosives whose use

or possession is not authorised under the Explosives Act,

forged or counterfeit currency or forged or counterfeit travel

or identity documents, any plate or dye used for forging

currency or documents and any other article specified by      15

the minister in regulations made under section 389;

“full receipt”, in relation to an article seized in terms of this Part,

means a receipt specifying the nature of the article, the name

and address of the person from whom it was seized and (if

some other person is known to be the owner thereof) the      20

name and address of the owner thereof, the date of seizure

and the place of custody, and the name and signature of the

seizing officer:

 

Provided that if three or more such articles are seized

from the same person at the same time, the receipt may refer   25

to a description of the articles in a list attached thereto that

is signed by the seizing officer and retained by the person

from whom it was seized;

“occurrence book” means  the journal  kept at a police station of

events required to be recorded therein on a daily basis;          30

“premises “or “land”  includes any container, vehicle, vessel or

aircraft present within or upon such premises or land.”.

 17 Amendment of section 49 of Cap. 9:07

Section 49 (“State may seize certain articles”) of the principal Act is amended by

the insertion of the following subsections, the existing section becoming subsection       35

(1)

“(2)  A police officer who seizes and removes any article in accordance with

this Part, whether under or without a warrant, must make a full receipt in duplicate

for the article so seized and removed, and—

  • give a copy of it to the owner or possessor thereof (unless the owner or 40

possessor of the article is arrested in connection with an offence involving the article, in which case paragraphs (b), (c) and (d) following apply);  or

  • in the absence of the owner or possessor, or if the owner or possessor of the article is arrested in connection with an offence involving the article, or if the owner or possessor is unknown or cannot be ascertained by the police officer after due inquiry, give a copy of it to (as the case may be)—
    • the person apparently in charge or control of or in lawful

occupation of the land, premises upon or in which the article is

                              seized; or

  • the person apparently in charge or control of the vehicle, vessel

5        or aircraft from which the article is seized;                 or

    (c) in the absence of the persons referred to in paragraph (b), give a copy
      of it to (as the case may be)—
      (i)      an apparently responsible person present upon or in the land or
10

15

 

 

 

 

(d) premises from which the article is seized;  or

(ii) an apparently responsible person present as a passenger within the vehicle, vessel or aircraft from which the article is seized and removed;

or

in the absence of all of the persons referred to in paragraph (a), (b) and (c), attach or leave a copy of the receipt in any part of the premises, land, vehicle, vessel or aircraft from which the article to which the receipt relates was seized and removed.

(3)  If an owner or possessor from whom any article is seized in accordance with this Part did not receive a full receive receipt therefor by reason having been

20 arrested in connection with an offence involving the article, he or she shall have the right to demand and receive such a receipt immediately upon being released on bail or upon being conditionally released, and thereupon he or she becomes entitled to all the rights provided under this Part to holders of such receipts.

(4)  Any police officer responsible for the seizure of an article under this

25  Part who—

  • fails to comply with subsection (2);
  • fails, upon a demand being made by an owner or possessor of the article pursuant to subsection (3), to furnish a full receipt in respect of that article;

shall, unless the article or articles in question are articles whose possession is

30 intrinsically unlawful, be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.”.

18 Amendment of section 50 of Cap. 9:07

  Section 50 (“Article to be seized under warrant”) of the principal Act is amended—

35 (a)  in subsection (1)(a) by the deletion of “or justice,” where it occurs for the first time and the substitution of “or justice (other than a police officer)”;

(b)  in subsection (4) by the deletion of “, after such execution,” and the substitution of “, before or after such execution,”.

 19 Amendment of section 51 of Cap. 9:07

40 Section 51 (“Search and seizure without warrant”) of the principal Act is amended by the insertion of the following subsections after subsection (3)

“(4) A police officer executing a search without a warrant in the circumstances specified in subsection (1) (b) shall, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, furnish

45 that person with the particulars of his or her name, rank and number, and the reasons for carrying out the search and seizure without warrant.

(5)  Any police officer who contravenes subsection (4), shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period

 

not exceeding three months or to both such fine and such imprisonment, unless the affected person is lawfully charged with and arrested for an offence in connection with such search and seizure.”.

  • Amendment of section 52 of Cap. 9:07

Section 52 (“Seizure of article on arrest or detention of person carrying same”)        5

is amended by the repeal of subsection (2) and the substitution of the following

subsections—

“(2)  A police officer to whom an article is delivered under subsection (1)(a)

or (b) shall forthwith, and in any event not later than forty-eight hours after such

delivery, make and deliver the full receipt referred to in section 49(2), and any failure   10

to do so entitles the owner or possessor thereof to demand the return of the seized

article upon expiry of that period, unless the article or articles in question are of a

kind whose possession is intrinsically unlawful.

(3)  Any police officer may stop and interrogate any person who is found at

any time between sunset and sunrise carrying or transporting any goods or articles      15

of any description and if—

  • such person does not account satisfactorily for the possession of the

                       goods or articles so being carried or transported;  and

  • there are reasonable grounds for suspecting that such goods or articles —
  • have been criminally procured; or    20
  • are of a kind whose possession is intrinsically unlawful;

such officer may convey such goods or articles and the person so carrying or transporting

the same to any prison or police station, and detain such person in custody:

Provided that section 32(3) and the other provisions of this Act relating to the

rights of arrested persons shall apply in relation to the person so detained and, if he     25

or she is released from custody, the goods and articles that he or she was carrying or

transporting shall be returned to him or her, unless they are seized and a full receipt

therefor is given to him or her in accordance with section 49.”.

  • Amendment of section 54 of Cap. 9:07

Section 54 (“Entering of premises for purposes of obtaining evidence”) of the       30

principal Act is amended by the insertion of the following subsections after subsection

(2) —

“(3) A police officer executing powers under subsection (1) or (2) shall, upon

demand of any person whose rights are affected by the exercise of such powers,

furnish that person with the particulars of his or her name, rank and number, and       35

the reasons for exercising those powers.

               (4)  Any police officer who—

  • contravenes subsection (3); or
  • enters a dwelling without the consent of the occupier thereof in the

                       purported exercise of powers under subsection (1) or (2);                      40

shall be guilty of an offence and liable to a fine not exceeding level four or to

imprisonment for a period not exceeding three months or to both such fine and such

imprisonment, unless, in the case of a contravention of subsection (3), the affected

person is lawfully charged with and arrested for an offence in connection with the

exercise of powers under subsection (1) or (2).”.                                                     45

  22 New section substituted for section 58 of Cap. 9:07

Section 58 of the principal Act is repealed and the following sections are substituted—

“58  Custody and disposal of seized articles

5  (1)  Subject to subsection (1), a police officer who seizes any article referred to in section 49 or to whom any such article is delivered in terms of this Part or to whom an article seized in terms of any other  enactment is delivered to be dealt with in terms of this Part, shall—

(a)     take it or cause it to be taken forthwith and delivered to a

10                                             place of security under the control of a police officer;  and

(b) have all relevant particulars in relation to it and its seizure entered in an inventory (which may be an electronic inventory, provided that a manual or material back-up of the inventory is maintained simultaneously) kept at the place

15 of custody, namely a sufficient description of the article, details of the date and particulars of the full receipt (if any) issued in relation thereto, and the identification number and mark assigned to it; and

(c) endeavour to ensure that the article, if vulnerable to damage

20 or contamination from moisture or dust, is kept free from contamination by moisture and dust, and that the place of security where it is lodged is protected from access by unauthorised persons;  and

(d) be held, subject to section 59, until the criminal proceedings 25 which are instituted in relation to that article—

(i) have been abandoned or discontinued or are concluded otherwise than with the conviction of the accused, in which event the custodian police officer shall forthwith restore any such article the accused or the owner thereof,

30 as may be appropriate, unless the article is one whose possession is intrinsically unlawful;  or

(ii) have resulted in the conviction of the accused, in which

                                             event the convicting court shall—

  1.                                             order any such thing to be restored to the accused

35                                                            or the owner thereof, as may be appropriate;  or

  1. order any such article to be forfeited to the State            or destroyed.

(2)  A police officer may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was

40 seized, deliver the article to the person from whom, in the opinion of such police officer, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so.

(3)  If the seized article needs to be destroyed or disposed of

45 because it is perishable or has become a hazard to human health or safety, and there is any valid reason for not returning the article in question to the owner or possessor thereof or other person to whom a full receipt was  given in respect of its seizure, then the police officer shall—

 

  • issue to the owner or possessor thereof or other holder of

the full receipt a notice of destruction or disposal of a seized

article substantially in the form set out in the Eleventh

Schedule, in which the owner, possessor or holder is also

notified of his or her right to object to the proposed destruction   5

or disposal within fourteen days of the date of issuance of

                                      the notice;  and

  • not earlier than fourteen days thereafter destroy the article

or have it destroyed, or dispose of the article in such manner

                                      as the circumstances may require;  and                                10

  • at least twenty-four hours before the day on which the article

is to be destroyed or disposed of, notify in writing the person

to whom the notice of destruction or disposal of the seized

article was issued, and afford the notified person or his or

her authorised representative an opportunity to witness the     15

destruction or disposal.

  • Immediately upon receiving any objection to a notice of

destruction or disposal of a seized article, a police officer shall apply for a

warrant of destruction or disposal of a seized article in terms of subsection

(5), upon not less than seven days’ written notice to the owner      20

or possessor thereof,  or, if his or her whereabouts or identity cannot be

ascertained after due inquiry, upon delivery of the notice to the same

person or in the same manner and at the same place as the receipt referred

to in section 49(2) was delivered.

  • An application for a warrant of destruction or disposal of a 25

seized article shall be made by a police officer to a magistrate or justice

(other than a police officer) having jurisdiction over the area where the

article was seized, for which purpose the police officer shall swear by

                       affidavit that—

  • the seized article (of a description and having the identification 30

number specified in the affidavit) needs to be destroyed or

disposed of because it is perishable or has become a hazard

                                      to human health or safety;  and

  • there is a valid reason (specified in the affidavit) for not

returning the article in question to the owner or possessor     35

thereof or other person to whom a full receipt was given in

                                      respect of its seizure;  and

  • a full receipt in respect of the article was issued on a specified

                                      date;  and

  • written notice of the time and place of the application for 40

the warrant was timeously given to the owner or possessor

thereof or other person mentioned in paragraph (b).

(6)  In an application for a warrant of destruction or disposal of

a seized article the magistrate or justice shall, if the owner or possessor

thereof, or other person mentioned in subsection (5)(b), is present, allow—  45

  • him or her to make representations in person, in writing or

through a legal practitioner, in opposition to the application;

                                      and

  • the applicant police officer to respond to any submissions

                                      made under paragraph (a);                                                 50

but no postponement of the application shall be entertained, and no submissions shall be made by either party except those concerning—

  • the truth or otherwise of any statement referred to in subsection

                                      (5) (a), (b), (c) or (d); and

5 (d) any allegation by the applicant police officer that the notified party or the party who is opposing the application is not entitled to the possession or ownership of the seized article by reason of not having a full receipt in relation thereto or

                                      for some other lawful reason;

10 and the application must be determined on the same day on which it was made, whether the notified person is present or not.

58A  Continued retention of seized articles if institution of criminal proceedings is delayed

                                  (1)  If within twenty-one working days from the date—

15                                      (a)    when an article was seized and receipt therefor was given

(provided that the date shown on the receipt shall be

                                              determinative if it is dated later than the day of seizure); or

(b) when a person referred to in section 49(3) receives a receipt  for any article previously seized from him or her;

20 no prosecution of an offence in respect of which the seized article is  required as an exhibit is initiated, that is to say—

  • no summons is issued to the accused person for the prosecution

                                               of the offence;  or

  • no statement of the charge is lodged with the clerk of the

25 magistrates court before which the accused is to be tried,  where the offence is to be tried summarily;  or

(e) no indictment has been served upon the accused person, where the person is to be tried before the High Court;

then the seized article shall (unless the article in question is one whose 30 possession is intrinsically unlawful) be returned as soon as possible by the police officer who detained it, or by any other person acting in his or her stead, to the premises, place, vehicle, vessel or aircraft from which it was removed or, where that is impracticable, be availed for collection at such place as the police officer shall direct the owner or possessor

35                                        thereof to go, unless the police officer earlier, upon at least seventy-two hours’ notice to the owner or possessor thereof, serves upon him or her a written notice of continued retention of the seized article, in which the police officer shall—

(f) affirm that investigations relating to the offence in respect of

40 which the seized article is required as an exhibit are ongoing and are being actively pursued without undue delay;  and

(g) afford the owner or possessor thereof an opportunity to lodge at a specified police station a written objection to the retention of the article within forty-eight hours of the date

45                                                                       of issuance of the notice of continued retention;

and if no such objection is lodged, the seized article may be retained in custody by the police until the pertinent criminal proceedings have been concluded, abandoned or discontinued and the seized article dealt with in accordance with this Part.

 

(2)  If the owner or possessor of a seized article is not served with

a notice of continued retention after the expiry of the period specified in

subsection (1) and no prosecution in respect of the seized article is initiated

within that time, then the owner or possessor has the right to recover the

article (unless it is one whose possession is intrinsically unlawful) from       5

the police upon mere production of the receipt issued to him or her by a

police officer in relation thereto, unless a police officer forthwith delivers

to the owner or possessor the notice of continued retention, and subsection (1) shall thereupon apply in relation to such notice.

  • Immediately upon receiving any objection to a notice of 10

continued retention of a seized article, a police officer shall apply for a

warrant of further retention of the seized article in terms of subsection (4),

upon not less than seven days’ written notice to the owner or possessor

thereof,  or, if his or her whereabouts or identity cannot be ascertained

after due inquiry, upon delivery of the notice to the same person or in the    15

same manner and at the same place as the receipt referred to in section

49(2) was delivered.

  • An application for a warrant of further retention of a seized

article shall be made by a police officer to a magistrate or justice (other

than a police officer) having jurisdiction over the area where the article     20

was seized, for which purpose the police officer shall swear by affidavit

that the seized article (of a description and having the identification number

specified in the affidavit) is required in evidence in criminal proceedings

                        and that—

  • investigations in respect thereof are ongoing and are being 25

                                      actively pursued without undue delay;  and

  • a full receipt in respect of the article was issued on a specified

                                      date;  and

  • written notice of the time and place of the application for

the warrant of further retention of the seized article was       30

timeously given to the owner or possessor thereof or other

person mentioned in subsection (1) or (2).

  • In an application for a warrant of further retention of a seized

article the magistrate or justice shall, if the owner or possessor thereof,

or other person mentioned in subsection (1), is present, allow—                35

  • him or her to make representations in person, in writing or

                            through a legal practitioner, in opposition to the application;  and

  • the applicant police officer to respond to any submissions

made under paragraph (a);

but no postponement of the application shall be entertained, and no        40

                   submissions shall be made by either party except those concerning—

  • the truth or otherwise of any statement referred to in subsection

                                      (4) (a), (b) or (c); and

(d) any allegation by the applicant police officer that the notified

party or the party who is opposing the application is not      45

entitled to the possession or ownership of the seized article

by reason of not having a full receipt in relation thereto or

                                      for some other lawful reason;

and the application must be determined on the same day on which it was

made, whether the notified person is present or not.                                 50

(6)  The effect of—

(a) the issuance of a warrant of further retention of a seized article is that the article may be retained in custody by the police until the pertinent criminal proceedings have been

5 concluded, abandoned or discontinued and the seized article dealt with in accordance with this Part;  or

(b) the refusal to issue a warrant of further retention of the seized article is that it must be returned without delay to the holder of the receipt issued in respect thereof, subject

10 to any directions the magistrate or justice may give for the preservation or safe custody of the same until the expiry of a specified period or on the initiation of a prosecution in

connection therewith, whichever event happens earlier.

(7)  Any holder of the receipt referred to in subsection (6)(b) who

15 fails to comply with any directions given to him or her for the preservation or safe custody of the article returned to him or her until the expiry of a specified period or on the initiation of a prosecution in connection therewith, whichever event happens earlier, shall be guilty of the crime of defeating or obstructing the course of justice contrary to section 184 20 of the Criminal Law Code and liable to the penalties therefor.  58B  Manner of service of notices for purposes of sections 58 and

58A

References to a police officer—

(a) issuing a notice of destruction or disposal of a seized article

25                                                                  to the owner or possessor thereof or other person to whom a

full receipt was given in respect of its seizure for the purpose

of section 58(3)(a);

(b) notifying such owner, possessor or person for the purpose

of section 58(3)(c);

30 (c) notifying such owner, possessor or person for the purpose        of section 58(4);

(d) issuing a notice of further retention of a seized article to the owner or possessor thereof or other person to whom a full receipt was given in respect of its seizure for the purpose

35                                                       of section 58A(1);

(e)    notifying such owner, possessor or person for the purpose

of section 58A(3);

are to be interpreted as requiring the police officer to deliver such notice

to the owner, possessor or person concerned or his or her authorised

40                               representative in any of the following ways—

(f) by hand delivery to the owner, possessor, person representative concerned in person, or to a responsible individual at the place of business or residential address of the owner, possessor,

person representative;  or

45                                                 (g) by registered post addressed to the place of business

or residential address of the owner, possessor, person

representative;  or

(h) by delivery to the place of business or residential address

of the owner, possessor, person representative through a

50                                                       commercial courier service;  or

(i) by electronic mail or telefacsimile at the electronic mail or telefacsimile address furnished by the owner, possessor, person representative to the police officer.”.

 

  • Amendment of section 59 of Cap. 9:07

Section 59 (“Disposal of article where no criminal proceedings are instituted, where it is not required for criminal proceedings or where accused admits his guilt”) of the principal Act is amended—

  • in subsection (1)—
    • by the deletion of “referred to in paragraph (c) of section fifty-eight” and the substitution of “referred to in section 58(1), and regardless of whether a notice of further retention of the seized article or warrant of further

                            retention of the seized article has been issued in relation to the article”;

  • in subparagraph (iii) by the insertion after “if no person may lawfully 10 possess the article” of “(whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise)”;
  • by the insertion of the following subsection after subsection (5)—

“(6)  If, in making an order under subsection (3) (a) or (b) in favour of an applicant, it appears to the magistrate, from the evidence presented before him or 15 her in the course hearing the application, that—

  • the amount, if any, realised by the State when disposing of the article

in question was inadequate to cover any costs reasonably incurred in securing the safe custody of the article;  and

  • the applicant was negligent or unduly dilatory in pursuing his or her 20 claim to the article in question;

the magistrate shall afford the State an opportunity to submit a claim for the recovery of any costs reasonably incurred in securing the safe custody of the article, and, if such submission is made—

  • may grant the whole or any part of such costs as to the magistrate 25 appears reasonable:

Provided that such costs must not exceed the reasonably estimated value of the article to be returned, or the value of the compensation awarded or sale price realised under this section, as the

case may be; and                                                                             30

  • shall direct the amount of the costs awarded under paragraph (c) to be deducted from any compensation payable or sale price realised under this section.”.
  • Amendment of section 61 of Cap. 9:07

Section 61 (“Disposal of article after commencement of criminal proceedings”)(1) 35 (c) of the principal Act is amended by the insertion after “if no person is entitled to the article” of “(whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise)”.

  • Amendment of section 62 of Cap. 9:07

Section 62 (“Forfeiture of article to State”) of the principal Act is amended—        40

  • in subsection (2) by the deletion of “which is forged or counterfeit or

which cannot lawfully be possessed by any person” and the substitution  of “whose possession is intrinsically unlawful”;

  • by the insertion of the following subsection after subsection (6)—

“(7)  If, in making an order under subsection (4) (a) or (b) in 45 favour of an applicant, it appears to the judge or magistrate, from the evidence presented before him or her in the course hearing the application, that—

  • the amount, if any, realised by the State when disposing of the article in question was inadequate to cover any costs reasonably incurred in securing the safe custody

                                          of the article;  and

  • the applicant was negligent or unduly dilatory in pursuing his or her claim to the article in question;

the judge or magistrate shall afford the State an opportunity to submit

a claim for the recovery of any costs reasonably incurred in securing

the safe custody of the article, and, if such submission is made—

10 (c) may grant the whole or any part of such costs as to the  judge or magistrate appears reasonable:

P rovided that such costs must not exceed the reasonably estimated value of the article to be returned, or the value of the compensation awarded or sale price

15        realised under this section, as the case may be;                        and

(d) shall direct the amount of the costs awarded under

paragraph (c) to be deducted from any compensation payable or sale price realised under this section.”.

20 26 Amendment of section 62A of Cap. 9:07

Section 62A (“Forfeiture of unlawful consideration in cases of bribery”) of the principal Act is amended in subsection (3) by the repeal of the proviso.

27 New sections inserted in Cap. 9:07

The principal Act is amended by the insertion after section 63 of the following

25 sections—

“63A Forfeiture and disposal of seized articles whose possession is intrinsically unlawful

(1)  If any article whose possession is intrinsically unlawful is seized by a police officer, such police officer or his or her superior shall

30                                        as soon as possible communicate to the police officer in command of the police district within which the seized article is to be held in custody the fact of such seizure, together with all relevant particulars concerning the article.

(2)  Subject to subsection (3), the seized article whose possession

35        is intrinsically unlawful shall be held in custody in accordance with this            section until—

                              (a)   it is forfeited to the State by virtue of this paragraph—

(i)      three months of the date when it was so seized, if

no criminal proceedings are instituted in connection

40                                                                                                           therewith within;  or

(ii) on the date that criminal proceedings, having been instituted in connection therewith, are abandoned, withdrawn or concluded otherwise than by the conviction of the accused;

45                                                                        or

(b) the article is declared forfeited to the State in terms of section

                                      62(2);

whereupon it shall be destroyed or disposed of in accordance with this section.

(3)  If the seized article whose possession is intrinsically unlawful

is, in the opinion of police officer seizing it, too hazardous or dangerous

to be removed or kept in custody in the manner prescribed by this section,

and accordingly needs to be destroyed on the spot or dealt with or kept

in custody in some other manner or place than that prescribed (whether

before or after it is forfeited to the State), the police officer shall forthwith

communicate his or her apprehensions to the police officer in command

of the police district within which the article is seized, and shall comply     10

with any directions as to the removal, custody, destruction or disposal

of the article as the police officer so in command may give him or her,

and shall record or cause to be recorded the following in the occurrence

book on the day of their occurrence or no later than twenty-four hours

                   thereafter—                                                                                        15

  • the date of seizure of the article and a sufficient description

                                      of it;  or

  • the date of the communication of the seizing police officer’s

apprehensions to the police officer in command of the police

district within which the article is seized, and any directions    20

                                      received from the latter in relation thereto;

  • the date and manner of the removal, custody, destruction or

disposal of the article.

(4) Section 58(1)(a), (b) and (c) applies to the custody of an article

                   whose possession is intrinsically unlawful except that—                          25

  • if possible, it shall be kept in a place of security that is

exclusively reserved for the custody of seized articles whose

                                      possession is intrinsically unlawful;  and

  • a separate inventory from that mentioned in section 58(1)(b)

                                     shall be kept in relation to such articles;  and                         30

  • the police officer in control of the seized article shall be

subject to any directions concerning the custody of the article

issued by the Environmental management Authority or other

agency of the State having any statutory responsibility in

respect of the seized article.                                               35

(5) Within seven days of the date of forfeiture in terms of

subsection (1), the police officer in command of the police district within

which the seized article is held in custody (hereafter in this section

called “the responsible police officer”) shall communicate in writing to

the Commissioner-General of Police, or any Assistant Commissioner       40

appointed by the Commissioner-General generally or specifically for that

purpose, and to the Prosecutor-General,  and to any agency of the State

                   having any statutory responsibility in respect of the seized article—

  • the full particulars of such article, including a sufficient

description of it and the dates of its seizure and forfeiture      45

                                      to the State;  and

  • the date, time and place for the destruction of the article,

or, if the article is to be disposed of in any other manner,

the manner of its disposal and the date, time and place of

the disposal.                                                                     50

  • The responsible police officer shall be in charge of the destruction or disposal of the seized article at the date, time and place referred to in subsection (5)(b):

Provided that whenever the responsible police officer is prevented by illness or other reasonable cause from discharging his or her function under this subsection, such function shall be discharged by any police officer of or above the rank of sergeant designated by the responsible  police officer for that purpose.

  • The Prosecutor-General or any public prosecutor appointed

10 by the Prosecutor-General generally or specifically for that purpose, and any other person on behalf of an agency that received a communication referred to in subsection (5), shall be entitled to be present at the destruction of the seized article or to witness its disposal, as the case may be.

(8) On the date and time appointed by the responsible police

15 officer under subsection (5), the police officer in charge of the destruction or disposal of the seized article shall, immediately upon such destruction or disposal, sign a declaration attesting to the destruction or disposal of the seized article, to which any witnesses authorised by subsection (7) to be present thereat shall also subscribe their names and signatures.

20 63B   Admissibility in evidence of certain notices and entries made           under this Part

                              (1)  Any original or authenticated copy of—

(a)   a full receipt issued in relation to an article seized in terms

                                      of this Part;

25                                                                                                                               (b) an entry in an inventory referred to in section 58(1)(b);

  • a notice of destruction or disposal of a seized article or a notice

to be present at the destruction or disposal thereof issued to

                                     any person for the purposes of section 58(3)(a) or (c);

  • a notice of further retention of the seized article served in

30                                                                                           terms of section 58A(1);

(e)     an entry in an occurrence book made for the purposes of

                                      section;

shall, upon its mere production by any person, be prima facie proof of the facts stated therein.”.

35 28 Amendment of section 66 of Cap. 9:07

Section 66 (“Summary committal for trial of accused person”) of the principal

Act is amended—

(a)    by the repeal of subsection (2) and the substitution of—

“(2) On receipt of a notice in terms of subsection (1), the

40 magistrate shall cause the person to be brought before him or her and shall forthwith commit the person for trial before the High Court and, if the person is in custody, shall issue a warrant for the further detention of the person in prison pending his or her trial before the High Court for the offence for which he or she has been committed.

45                                                                                              (2a)  If a person who is committed for trial in terms of subsection

(2) has earlier been granted bail on the charge for which he or she is committed, the grant shall stand but a judge of the High Court may, in terms of Part IX, alter the conditions of the recognizance or revoke the bail and commit the person to prison.”;

  • by the repeal of subsection (6) and the substitution of—

“(6) Where an accused has been committed for trial in terms of

subsection (2) there shall be served upon him or her in addition to the  indictment and notice of trial—

  • a document containing a list of witnesses it is proposed

to call at the trial and a summary of the evidence which

each witness will give, sufficient to inform the accused

of all the material facts upon which the State relies; and

  • a notice requesting the accused—
    • to give an outline of his or her defence, if any, to 10

the charge; and

  • to supply the names of any witnesses he or she

proposes to call in his or her defence together with

a summary of the evidence which each witness will

give, sufficient to inform the Prosecutor-General of    15

all the material facts on which he or she relies in

his or her defence;

and informing the accused of the provisions of section 67(2) in the

event that the accused declines to give the information referred

to in paragraph (b), whether on the grounds that he or she wishes    20

to exercise his or her right to silence or otherwise.”;

  • in subsection (10) by the repeal of paragraph (b) and the substitution of—

“(b)    inform him or her of—

(i)    his or her right to remain silent by declining to do either

or both of the following—                                             25

  1. to give an outline of his or her defence, if any, to

the charge; and

  1. to supply the names of any witnesses he or she

proposes to call in his or her defence together with

a summary of the evidence which each witness will    30

give, sufficient to inform the Prosecutor-General of

all the material facts on which he or she relies in

his or her defence;

and

(ii) the consequences of remaining silent, that is to say,         35

informing the accused of the provisions of section 67(2).”.

29 New section inserted in Part IX of Cap. 9:07

The principal Act is amended by the insertion in Part IX before section 116 of

the following section—

“115C Compelling reasons for denying bail and burden of proof in    40

bail proceedings

  • In any application, petition, motion, appeal, review or other

proceeding before a court in which the grant or denial of bail or the

legality of the grant or denial of bail is in issue, the grounds specified in

section 117(2), being grounds upon which a court may find that it is in      45

the interests of justice that an accused should be detained in custody until

he or she is dealt with in accordance with the law, are  to be considered

                       as compelling reasons for the denial of bail by a court.

  • Where an accused person who is in custody in respect of an offence applies to be admitted to bail—

(a)    before a court has convicted him or her of the offence—

  • the prosecution shall bear the burden of showing, on a balance of probabilities, that there are compelling reasons justifying his or her continued detention, unless the offence

in question is one specified in the Third Schedule;

  • the accused person shall, if the offence in question is one specified in—

10 A. Part I of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the

15                                                                                                                                                    prosecution, the prosecution shall bear that burden;

  1. Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests

of justice permit his or her release on bail;

20 (b) after he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail.”.

 30 Amendment of section 127 of Cap. 9:07

25 Section 127 (“Person on bail may be arrested without warrant if about to abscond or interfere with witness”) of the principal Act is amended—

  • in subsection (1) by the insertion after “possible” of “, and in any event within forty-eight hours of the arrest,”;
  • in subsection (2) by the deletion of “forthwith” and the substitution of
  • “at the time of the arrest.”.
  • Amendment of section 136 of Cap. 9:07

Section 136 (“Charge in High Court to be laid in indictment”) of the principal Act is amended by the repeal of subsection (2) and the substitution of—

“(2) Where the prosecution is at the public instance, the indictment shall be

35 in the name of the Prosecutor-General and shall be signed by the Prosecutor-General or by a member of the National Prosecuting Authority authorised by him or her.”.

  • Repeal of section 154 of Cap. 9:07

Section 154 of the principal Act is repealed.

  • Amendment of section 157 of Cap. 9:07

40 Section 157 (“Allegation of intent to defraud sufficient without alleging whom it is intended to defraud”) of the principal Act is amended in subsection (1) by the repeal of paragraphs (a) and (b) and the substitution of the following paragraph—   “(a) forgery or fraud;  or”.

  • New section inserted in Cap. 9:07

The principal Act is amended by the insertion after section 163 of the following section—

“163A  Accused in magistrates court to be informed of section 191 rights

“(1) At the commencement of any trial in a magistrates court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section.

(2) The magistrate shall record the fact that the accused has been    10

given the information referred to in subsection (1), and the accused’s

response to it.”.

  • New section inserted in Cap. 9:07

The principal Act is amended by the insertion after section 167 of the following

section—                                                                                                               15

“167A  Unreasonable delay in bringing accused to trial

  • A court before which criminal proceedings are pending shall

investigate any delay in the completion of the proceedings which appears

to the court to be unreasonable and which could cause substantial prejudice

to the prosecution, to the accused or his or her legal representative, to a     20

witness or other person concerned in the proceedings, or to the public

interest.

  • In considering whether any delay is unreasonable for the

purposes of subsection (1), the court shall consider all the circumstances

of the case and in particular the following—                                           25

  • the extent of the delay;
  • the reasons advanced for the delay;
  • whether any person can be blamed for the delay;
  • whether the accused has raised such objections to the delay

as he or she might reasonably have been expected to have     30

raised;

  • the seriousness, extent or complexity of the charge or charges;
  • any actual or potential prejudice which the delay may

have caused to the State, to the accused or his or her legal

representative or to any other person concerned in the        35

proceedings;

  • the effect of the delay on the administration of justice;
  • the adverse effect on the interests of the public or the victims

in the event of the prosecution being stopped or discontinued.

  • If after an investigation in terms of subsection (1) the court 40

finds that—

  • the completion of the proceedings is being unduly delayed;

or

  • there has been an unreasonable delay in bringing the accused

to trial or in completing the trial;                                        45

the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order—

    (i) refusing further postponement of the proceedings;
    (ii) granting a postponement subject to such conditions as the court may determine;
    (iii) that the prosecution of the accused for the offence be permanently stayed;
    (iv) that the matter be referred to the appropriate authority
10     for an administrative investigation and possible disciplinary action against any person responsible for the delay.

(4) The Prosecutor-General may appeal against an order referred

to in subsection (3) (iii) as if it were an acquittal of the accused.”.

15 36 Amendment of section 180 of Cap. 9:07

Section 180 (“Pleas”) of the principal Act is amended in subsection (2)—

(a) in paragraph (e) by the insertion after “charged” of “or is immune from liability to prosecution for the offence, whether in terms of section 267(2) or any other law”;

20                                                                                                            (b) by the insertion after paragraph (g) of the following paragraphs—

“or

“(h) that he or she is entitled to an order under section 167A permanently staying the prosecution on the ground that there has been an unreasonable delay in bringing him or her to trial for the offence;

25                                        or

(i) that a court has given an order under section 167A permanently staying the prosecution of the offence.”.

 37 Amendment of section 188 of Cap. 9:07

Section 188 (“Outline of State and defence cases”) of the principal Act is amended

30 in paragraph (b)—

  • by the insertion after “statement” of “, if he or she so wishes,”;
  • by the deletion of “the provisions of subsection (2) of section one hundred and eighty-nine” and the substitution of “his or her right to remain silent, and the consequences of exercising that right,”.

35 38 Amendment of section 194 of Cap. 9:07

Section 194 (“Presence of accused”) of the principal Act is amended by the repeal of subsection (5).

  • New section substituted for section 258 of Cap. 9:07

The principal Act is amended by the insertion of the following section after section

  • 258—

“258A  Admissibility or inadmissibility of illegally-obtained evidence

(1) In determining, for the purposes of section 70(3) of the

Constitution, whether to exclude evidence that has been obtained in a manner that violates any provision of Chapter 4 of the Constitution, a

45                           court shall endeavour to strike a proper balance between—

 

  • safeguarding—
    • the rights of the accused concerned; and
    • the integrity of the criminal justice system against

serious or persistent breaches of the law by the police

or other employees of the State;                                    5

and

  • the public interest in—
    • doing justice to the victim or victims of the crime in

question; and

  • upholding the confidence of the public in the ability 10

of the criminal justice system  to protect members of

the public from crime, especially grave, violent or

prevalent crime.

(2) In applying the test referred to in subsection (1) a court must

bear in mind that, in general, where the questioned evidence is obtained     15

by a contravention of Chapter 4 of the Constitution that is—

  • inadvertent or trivial, the considerations referred to in

subsection (1)(b) shall override the ones referred to in

subsection (1)(a);

  • not inadvertent or not trivial or both, only compelling reasons 20

will justify the considerations referred to in subsection (1)(b)

overriding the ones referred to in subsection (1)(a), where

the State has shown that those compelling reasons are the

motive for that contravention.

  • Evidence that is obtained in a manner that violates any provision 25

of Chapter 4 of the Constitution, but which is admitted by a court after

taking into account the considerations referred to in subsections (1) and

(2), shall not be regarded as rendering the trial unfair or otherwise as

being detrimental to the administration of justice or the public interest.

  • For the avoidance of doubt, the fact that a court has admitted 30

illegally obtained evidence in accordance with this section does not

prejudice the right of an accused person to pursue a civil remedy for any

breach of the law in consequence of which the evidence was obtained.”.

 40 New section inserted in Cap. 9:07

The principal Act is amended by the insertion after section 263 of the following    35

section—

“264 Evidence of bodily appearance, health or prints of accused

(1) Whenever it is relevant in criminal proceedings to ascertain

whether any finger-print, palm-print or foot-print of an accused person

corresponds to any other finger-print, palm-print or foot-print, or to        40

ascertain the state of health of an accused person or whether the body of

an accused person has or had any mark, characteristic or distinguishing

feature or shows or showed any condition or appearance—

(a)        the court may order that all necessary steps be taken to

ascertain those matters, including arrangements for—           45

  • the taking of the accused person’s finger-prints, palmprints or foot-prints; and
  • the taking of a blood, saliva or tissue sample from the accused person; and
  • the examination of the accused person;

(b) evidence of the finger-prints, palm-prints or foot-prints of the accused person or that the body of the accused person has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of the testing of any blood, saliva or tissue sample taken from the accused person, shall be

10                                                          admissible in those criminal proceedings.

  • Any examination of an accused person conducted pursuant to

an order of a court in terms of subsection (1)(a) shall be conducted with strict regard for decency and decorum.

  • Evidence referred to in subsection (1)(b) shall not be

15 inadmissible solely on the ground that it was taken or ascertained against the wish or the will of the accused person.

(4) Any finger-prints, palm-prints, footprints, photographs or samples and the records of any steps taken under this section shall be destroyed if the person concerned is found not guilty at his or her trial

20 or if his or her conviction is set aside by a superior court or if the charge against him or her is withdrawn.

(5) Section 41B(6) applies, with such changes as may be necessary, to a person referred to in subsection (4).”.

 41 New section inserted in Cap. 9:07

25 The principal Act is amended by the insertion after section 334 of the following section—

“334A  Sentencing guidelines

(1) In this section—

“draft sentencing guidelines” means sentencing guidelines that

30 have not been published in accordance with subsection (10) or (11)(b) (i) or (ii);

“judicial conference” means a conference convened in terms of subsection (3);

“presumptive penalty” means a penalty expressed as a specific

35 amount of a fine or a specific period of imprisonment or both that is midway between an augmented penalty which may be imposed in aggravating circumstances (whether or not these circumstances are specified in the enactment concerned), and a diminished penalty which may be imposed in mitigating

40 circumstances (whether or not these circumstances are specified in the enactment concerned);

“sentencing guidelines” means guidelines relating to the sentencing of offenders, which have been formulated in terms of this section.

“table of presumptive penalties” means a table setting forth for each

45                                                  offence included in the table, a presumptive penalty, together

with the aggravating and mitigating circumstances that may justify a court in departing from the presumptive penalty.

 

 (2) For the avoidance of any doubt it is declared that this section must not be construed as derogating from or infringing upon the exclusive competence of the Legislature to enact punishments for breaches of any law, including the enactment of maximum, minimum and presumptive  
levels of any fine or maximum, minimum and presumptive lengths of any sentence of imprisonment.

(3) The Judicial Service Commission may from time to time convene a conference bringing together representatives of—

(a)       judges of the Constitutional Court, the Supreme Court and the High Court; and

(b)      magistrates;  and

(c)       the National Prosecuting Authority; and

(d)      the Police Service; and

(e)       the Prisons and Correctional Service; and

(f)       the Law Society of Zimbabwe; and

(g)      such other organisations and bodies as, in the Commission’s

opinion, have expertise or an interest in crime, punishment and the rehabilitation or treatment of criminals;

for the purpose of studying and discussing the objectives, policies, standards and criteria for sentencing offenders, and formulating draft sentencing guidelines.

(4)  The procedure to be followed at a judicial conference shall

be as prescribed or, in relation to any matter that is not prescribed, as determined by the Judicial Service Commission.

(5)  Draft sentencing guidelines may relate to all matters relating to the sentencing of offenders and, in particular, to—

(a)       inquiries and investigations to be conducted by courts prior to sentencing offenders;

(b)      the factors to be considered by courts when sentencing offenders;

(c)       forms of punishment that may be imposed as alternatives to custodial sentences;

(d)      principles and criteria which will assist in promoting

consistency in sentencing and the equitable administration of criminal justice in Zimbabwe;

and they may be formulated so as to be general in nature or so as to apply to particular offences or classes of offences or to particular classes of offenders.

(6) In formulating draft sentencing guidelines, a judicial conference shall pay regard to—

(a)       the need to promote consistency in sentencing; and

(b)      the impact of sentencing decisions on offenders and their families as well as on victims of offences;  and

(c)       the need to promote public confidence in the criminal justice system;  and

(d)      the cost of different sentences and their relative effectiveness in rehabilitating offenders and reducing crime.

  5

10

15

20

25

30

35

40

45

  • Unless a judicial conference agrees upon some other form, draft sentencing guidelines shall be in the form of a table of presumptive penalties supplemented by additional guidelines addressing such of the factors referred to in subsection (5) as are relevant to each offence or class of offence included in the table.
  • As soon as practicable after a judicial conference has formulated draft sentencing guidelines, the Judicial Service Commission shall approve them, with or without amendments, for submission to the minister in terms of subsection (9).

10  (9) As soon as practicable after approving the draft sentencing guidelines, with or without amendments, the Judicial Service Commission shall, subject to subsection (10), submit them to the minister for publication as regulations in terms of section 389, and upon such publication the courts shall pay due regard to the applicable sentencing guidelines when

15 sentencing offenders and, while not being bound by the guidelines, must, when departing from them in any case, record the reasons for doing so.

(10) The minister must publish the draft sentencing guidelines substantially in the form in which he or she receives them from the Judicial

Service Commission, unless he or she has any substantial objections to

20 them, in which event the minister must return them (together with written notification of his or her objections and of the reasons for them) to Judicial Service Commission for consideration of his or her objections by the Judicial Service Commission or, if the Commission so determines, at the next judicial conference following the notification of his or her objections.

25                                                                                                                                (11) If after notification of the Minister’s objections to the draft

sentencing guidelines the Judicial Service Commission or, as the case may be, the next judicial conference—

(a)         upholds the minister’s objections, the Judicial Service

Commission shall resubmit them with the appropriate

30 amendments to the minister for publication as regulations in terms of section 389;

(b) declines, in whole or in part, to uphold the minister’s objections, the Judicial Service Commission shall resubmit them, together with the reasons for the Commission or the

35                                                                       judicial conference so declining, to the minister, who may thereupon—

(i)      publish them substantially in the form in which he

or she first received them from the Judicial Service Commission; or

40                                                                                                                                        (ii) publish such part of them as the minister did not object

to in his or her original notification of objections under subsection (7);  or

(iii) refuse to publish them as regulations in terms of section 389.

45                                                                                                                                (12) Sentencing guidelines may be amended, replaced or revoked

by a subsequent judicial conference, and thereupon subsections (5) to (11) shall apply to such amendment, replacement or revocation.”.

  • Amendment of section 336 of Cap. 9:07

Section 336 (“Nature of punishments”)(1) of the principal Act is amended by the repeal of paragraph (a) and the substitution of—

“(a) in the case of the High Court, sentence of death, where the

offender is convicted of murder in aggravating circumstances;”.    5

  • New sections substituted for sections 337 and 338 of Cap. 9:07

Sections 337 and 338 of the principal Act are repealed and substituted by—

“337  Sentence for murder

  • Subject to section 338, the High Court may pass sentence of

death upon an offender convicted by it of murder if it finds that the murder   10

was committed in aggravating circumstances.

  • In cases where a person is convicted of murder without the

presence of aggravating circumstances, or the person is one referred to in

section 338(a), (b) or (c), the court may impose a sentence of imprisonment

for life, or any sentence other than the death sentence or imprisonment for   15

life provided for by law if the court considers such a sentence appropriate

in all the circumstances of the case.

338 Persons upon whom death sentence may not be passed

The High Court shall not pass sentence of death upon an offender

who—                                                                                               20

  • was less than twenty-one years old when the offence was

committed; or

  • is more than seventy years old; or
  • is a woman.”.
  • New section inserted in Cap. 9:07 25

The principal Act is amended by the insertion of the following section after section

385—

“385A Rights of arrested or detained persons and interested parties

(1) In this section—

“interested party”, in relation to a detained person, includes—       30

  • a relative, friend or employer of the detained person;

and

  • any person with a legitimate interest in the detained

person’s welfare; and

  • a legal practitioner representing the detained person 35

or engaged by a person referred to in paragraph (a) or

(b) to represent the detained person;

“responsible person” means the member of a State agency primarily

responsible for a detained person’s detention or custody;

“State agency” includes the Police Service, the Prison Service, every 40

branch of the Defence Forces, and any other organisation

consisting wholly or mainly of persons employed by the State.

(2) A person who has been arrested or is detained, whether under this Act or any other enactment, shall be permitted without delay—

  • to exercise his or her right to contact, at the state’s expense, any one of the persons specified in section 41A(1)(d):

Provided that if the arrested or detained person does not succeed, without any fault on his or her part, in contacting a person of his or her first choice, the arrested or detained person shall be allowed to contact any other person specified in section 41A(1)(d) until he or she succeeds in contacting him or her; and

  • to obtain and instruct, at his or her own expense, a legal

10                                                                       practitioner of his or her own choice, and to communicate privately with that legal practitioner:

Provided that, where an arrested person must be produced before a court within forty-eight hours after his or her arrest in accordance with section 32, it shall be lawful

15 for the police to take the arrested person to court in the absence of his or her legal practitioner if—

(i)     the arrested person, without any fault on the part of

the police, fails to contact, obtain or instruct a legal practitioner of his or her own choice; or

20 (ii) where the arrested person succeeds in contacting, obtaining or instructing a legal practitioner of his or her own choice, that legal practitioner, without any fault on the part of the police, fails to represent the arrested person within that period or at the court where

25                                                                       he or she must appear.

(3) The responsible person shall inform any interested party, promptly on request, of the detained person’s whereabouts and of the reasons for the detained person’s detention or custody unless there are compelling reasons for not doing so (the proof whereof rests with the

30                           responsible person).”.

 45 Amendment of section 389 of Cap. 9:07

Section 389 (“Regulations”) of the principal Act is amended in subsection (2) by the insertion after paragraph (d) of the following paragraphs—

“(e)      in relation to the “Statement of Rights Upon Arrest” set forth in the

35                                 Tenth Schedule—

  • for the official translation of the Statement into Chewa, Chibarwe, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sotho, Tonga, Tswana, Venda and Xhosa;
  • for the amendment of the Tenth Schedule by adding, deleting or

40                                            substituting any words therein, or for the replacement the Tenth

Schedule entirely:

Provided that when the minister wishes to make regulations for the purpose of subparagraph (i) or (ii) he or she shall lay the draft regulations before Parliament, and if neither the National Assembly nor the Senate

  • makes a resolution against the publication of regulations within the next seven sitting days after it is so laid before each House, the minister shall cause it to be published in the

(f) for the questioning by peace officers of persons who are suspected of having committed an offence.”.

  • New Schedule substituted for First Schedule to Cap. 9:07

The First Schedule to the principal Act is repealed and the following is substituted—

“First schedule (Sections 25, 27, 39 and 42)

SPECIFIED OFFENCES IN RELATION TO POWERS OF ARREST

Any offence in respect of which a punishment of a period of imprisonment exceeding six months is provided and may be imposed without the option of a fine, and any conspiracy, incitement or attempt to commit, or being a participant in, any such offence.”.

  • New Schedules inserted in Cap. 9:07

The principal Act is amended by the insertion of the following Schedules after the Ninth Schedule—

“tenth schedule (Section 41A (4))

STATEmENT OF RIghTS UPON ARREST

(Full name of accused) you are under arrest for (the alleged offence in full); you have the right to remain silent and anything you say may be used against you in a court of law, [however, if you want to say anything that may clear you of the alleged offence, then you may say it.]*

You have the right to make one telephone call to a relative, friend, employer, legal practitioner or any other person of your choice.  *The inclusion of the bracketted words is optional

eleventh schedule (Section 58 (3))

NOTICE OF DESTRUCTION OR DISPOSAL OF SEIzED ARTICLE(S)

I   ————————— (name and rank of police officer), hereby notify you in terms of section 58(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] ........................

.............................................................................................................................................

(name of owner or holder of receipt given in respect of the seized article(s)) that the following article(s):

——————————————————————————————————

——————————————————————————————————

——————————————————————————————————

——————————————————————————————————

(description of/article(s)) is perishable/has become a hazard to human health or safety (tick either or both, as applicable).

Accordingly, the said article(s) will be destroyed on a date and at a time and place to be notified to you no earlier than fourteen (14) days from the date of service of this notice.

You are entitled, no later than fourteen (14) days from the date indicated below, to object to the proposed destruction or disposal by detaching the coupon below and delivering it within that time to the address indicated below.  Your rights on objection will be explained to you on delivery of the coupon.

Signature of Notifying Police Officer ————————————————————

Address where objection may be lodged

———————————————————

———————————————————

———————————————————

 

Date of signature _____________

 

——————————————————————————————————

(Complete and Detach  this portion if you wish to object)

I —————————————————————————————————— of ——————————————————————————————————

——————————————————————————————————

 —— (name and address of owner or holder of receipt given in respect of the seized article(s)), having received a notice from ————————— (name and rank of notifying police officer), object to the destruction/of the article(s) seized from me.

Signature of objector ————————————————————————

Address where any further notices/correspondence by the police may be lodged, if different from the address of the objector

—————————————————

—————————————————

—————————————————

 

Contact number(s) (cell phone, landline and/or email)  ———————————

Date of signature ————————

 

Official use only: received by _____________ (name and rank of receiving police officer) on ____________________ (date of receipt).”.

  • Amendment of Cap. 7:20

The National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014) is amended—

  • in section 2 (“Interpretation”) by the insertion of the following definition—

““Deputy Prosecutor General” means the Deputy Prosecutor-General appointed in terms of section 340(3) of the Constitution;”;

  • in section 4 (“Constitution of National Prosecuting Authority”)(1) by the repeal of paragraph (b) and the substitution of—

“(b)        the Deputy Prosecutor General  and the National Director of

Public Prosecutions; and”;

  • in section 5 (“Establishment and composition of National Prosecuting Authority Board”)(1) by the deletion of “National Director of Public

Prosecutions” and the substitution of “Deputy Prosecutor General”

  • in section 32 (“Transitional provisions”)—
    • in subsection (2) by the deletion of “National Director of Public

Prosecutions” and the substitution of “Deputy Prosecutor General”;

  • in subsection (3) by the deletion of “Deputy National Director of Public Prosecutions” and the substitution of “National Director of Public Prosecutions”;
  • in subsection (9) by the deletion of “saved under section 93(3)(b) of the Public Finance management Act [Chapter 22:19] (No. 11 of 2009)” and the substitution of “saved under section 93(3)(b) of the Public Finance management Act [Chapter 22:19] (No. 11of 2009) (including any amendment or replacement of the constitution of that

Fund, regardless of the sources of its moneys)”;

  • by the insertion of the following subsection after subsection (11)—

“(12)  Subsection (9) as amended by the Criminal Procedure and Evidence Act, 2015, takes effect from the 2nd January, 2015.”.

  • Minor amendments to Cap. 9:07

The provisions of the principal Act specified in the first column of the Schedule are amended to the extent set out opposite thereto in the second column.

mINOR AmENDmENTS TO CRImINAL PROCEDURE AND EVIDENCE ACT [Chapter 9:07] sChedule

Provision   Extent of Amendment
Section 39(2) By the insertion after “Zimbabwe” of
      “referred to in subsection (1)”.
Section 57 By the deletion of “the provisions of
    subsection (4) of section forty-one shall apply,
           mutatis mutandis, to the searching of any
             woman” and the substitution of “section 41B(3)
      shall apply to the search of any person”.
Section 60(1) and (2) By the deletion of “paragraph (c) of section fifty-
     eight” and the substitution of “section 58(1)”.
Section 113(2)(c) By the deletion of “and of subsection (2) of section
      two hundred and fifty-six”.
Section 118(1) By the deletion of “referred to in subsection (1)
       of section 117A” and the substitution of “for
      bail”.
Section 118(2)(b)(i) By the deletion of “Attorney-General” and the
      substitution of “Prosecutor-General”.
Section 135(1)(c) By the deletion of “Protection and Adoption”.

Sections 136(6) and 140(6) By the deletion of “sixty-seven” and the

      substitution of “113A”.
Section 142(5) By the deletion of “the provisions of subsections
    (2), (3) and (4) of section sixty-seven” and the
      substitution of “section 113A”.
Section 151(5) By the deletion of “in the Civil Service” and the
      substitution of “by the State”.
Section 285 By the deletion of “Post Office” wherever it
 (in paragraph (b) of the definition of “bank”)   occurs and the substitution of “Peoples’ Own”.
Section 309(1) By the deletion of “in the Civil Service or”.
Section 319B(v) By the deletion of “section 18” and the substitution
      of “section 70(1)(g)”
Section 334(1) By the deletion of “Subject to paragraph (a) of
    section three hundred and thirty-seven, where”
      and the substitution of “Where”.

 

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