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NATIONAL ASSEMBLY HANSARD 3 FEBRUARY 2023 VOL 49 NO 17
PARLIAMENT OF ZIMBABWE
Friday, 3rd February, 2023
The National Assembly met at a Half-past Nine o’clock a.m.
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENT BY THE HON. SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE
THE HON. SPEAKER: I have received from the Parliamentary Legal Committee a Non-Adverse Report on the Police Amendment Bill [H. B. 1, 2023].
Second Reading: With leave, forthwith.
POLICE AMENDMENT BILL [H. B. 1, 2023]
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker Sir. I am just going to recap for the benefit of Hon. Members but with the indulgence of the Hon. Members, I will not repeat the speech because it is a technical issue. The Bill was before Parliament but it lapsed. It had lapsed twice; therefore we had to restart again. We had already done the other processes. We did not alter anything on the Bill, so I will just recap using the memorandum so that Hon. Members can refresh their memories. The debate had already been done on my actual Second Reading speech. So I will indulge Hon. Members and just refresh their memories.
Mr. Speaker Sir, the purpose of this Bill is to amend the Police Act to achieve the following objectives; that is to ensure we align the Police Act with the Constitution and ensure that as the Constitution provides, the Commissioner General will be appointed by the President in consultation with the relevant Minister in terms of Section 221 (1) of the Constitution.
The other issue is also to align the tenure of the Commissioner General of Police with the Constitution and also to align sections of the Police Act to Section 243 (2), Section 255 (2) and Section 259 (11) of the Constitution. I will just speak on some of the clauses.
Clause 1 is the Short Title. Clause 2 amends the definition of Commissioner General and replaces the term ‘Police Force’ with ‘Police Service’.
Clause 3 speaks about the appointment of the Commissioner General by the President as provided in the Constitution.
Clause 4 sets out terms and conditions of the Commissioner General as provided in the Constitution.
Mr. Speaker, Clause 5 places the duty on the Commissioner General of Police to act in accordance with any written policy directives that is given by the Minister.
Clause 8 provides that the Commissioner General must comply again with any directives given to him or by her by the Zimbabwe Human Rights Commission in terms of Section 243 (2) of the Constitution and directives given by the Zimbabwe Anti-Corruption Commission.
Clause 14 repeals Section 32 of the Act which gives a right to trial before a magistrate court. All the disciplinary trials, even of commissioned officers should be conducted by a body of officers only.
Clause 18 provides for delegation of functions of Police Service Commission to the Commissioner General.
Clause 19 provides for alignment of Section 67 of the principal Act to the Constitution.
Mr. Speaker, we are bringing this Act to Parliament to align the Police Act with the Constitution of 2013 and like I indicated, this is a technical compliance that we redo because the Bill lapsed twice. The Committee has already done its work and Parliament had already debated on my actual Second Reading speech which had not changed and is on record in the Hansard. Therefore Mr. Speaker, I move that the Bill be read a second time.
Hon. Gonese having stood up to debate
THE HON. SPEAKER: Hon. Gonese, when the Bill had been presented previously, did you not debate?
HON. GONESE: I did not debate. It had lapsed at the Second Reading stage. Mr. Speaker Sir, I just want to make few comments regarding the alignment of the current Police Act to the Constitution. In this regard Mr. Speaker, I want to say that firstly, there is the change of the nomenclature from force to service. I believe that when this happens, we must have a paradigm shift. You will find that when we came up with the new Constitution in 2013, we were very clear that we must move away from the past.
THE HON. SPEAKER: Move away from what?
HON. GONESE: From the past. Before independence Mr. Speaker Sir, we had the BSAP, because of their brutality they used to be called Baba Satan ari pano. So the mentality of the BSAP is not supposed to be what we should have in an independent Zimbabwe. Unfortunately, Mr. Speaker Sir, this is not what has actually transpired in the sense that we still have members of the police service behaving as a force. I believe that when we are aligning the Act through this Amendment Bill to the Constitution, you must have that transformation whereby the rights of the citizens of Zimbabwe are upheld by the police. They have got a motto - pro-lege, pro-patria, pro-populo which is a latin phrase with the ZRP which means; for the law, for the country and for the people. I think this is what we will be expecting.
I would also want to make some comments relating to the rights of accused persons which are enshrined in Section 50 of our Constitution and I will make a proposal when it comes to the Committee stage. I know that I might not have drafted the appropriate amendments but if the Hon. Minister is to be amenable because it adds value. It enhances the process so that we can have some of those critical provisions which relate to the rights of accused persons, arrested persons and so on where members of the police service are required to advise people of their rights. At the time of arrests, an accused person is to be informed of the right to contact a legal practitioner of their choice, to contact a medical practitioner where applicable and where appropriate. Instead Mr. Speaker Sir, as I have already indicated, the police in the past, under the Rhodesian regime trampled under the rights of the people in this regards. Unfortunately, this is still happening and I believe that it will be an improvement on the Bill if we can have those provisions incorporated into the current Police Act so that it is made clear that at the time of arrest, the police must advise the accused persons of their rights, advise them that they are entitled to consult a legal practitioner of their own choice and if they have got any medical ailments, they are supposed to contact a medical practitioner as well.
Those will be my brief submissions on the Bill, otherwise I am in support of the Bill but I am just pointing out that it is also important to have not just an amendment to the Act, but also a paradigm shift of doing things. After all, we have been told times without number that we are supposed to be in a new dispensation so that we will have a difference in the way that we operate. I thank you.
HON. NDUNA: I just want to applaud the Minister on two issues in his endevour to align the Police Act with the Constitution which is sui generis:, in a class of its own, which is the supreme law of the land; in particular Clause 8 which deals with compliance with the Zimbabwe Anti-corruption Commission and the Zimbabwe Human Rights Commission. Mr. Speaker Sir, the Hon. Member that spoke before me took words out of my mouth in terms of compliance with the Zimbabwe Human Rights Commission but in particular, the Zimbabwe Anti-Corruption …
THE HON. SPEAEKR: The Standing Orders are very clear; do not repeat what has been stated already,
HON. NDUNA: I will not repeat Mr. Speaker Sir. I will just touch on the Zimbabwe Anti-corruption Commission, in particular where the current status is that they did not have arresting powers. So, this is very progressive where the Zimbabwe Republic Police has to comply with the arrest or with the statements, in particular, those that would have been recorded by the Zimbabwe Anti-Corruption Commission so that the Police, together with the Zimbabwe Anti-Corruption Commission bring the perpetrators to injustice before the courts of law.
Clause 14 that repeals the Act in-so-far as it relates to disciplinary of the Police Service being brought before the Magistrate Court as a first port of call – that is very progressive.
The Defence Act in the Army directs that anyone who is delinquent in their operation in the force is brought before either the Supreme Court orders or the court martial. I think the Police Force is now being aligned, not only to the Constitution but to a number of other Acts in the force. This is very progressive because the current situation is quite confusing. Now, if the Act starts directing to a disciplinary commission within the force, it is quite progressive and it is in sync with the Constitution. I thank you.
THE HON. SPEAKER: Hon. Members, let it be brought to your attention; Standing Order 157 - “Members who wish to propose amendments to Bills must submit such amendments in writing and in proper form to the Clerk during the business hours of Parliament for that day, on the day before that on which they are to appear. Subsection (2) - Amendments may be handed to the Clerk at any time after the First Reading of a Bill”.
So, Hon. Minister, do not belabor yourself on some of the suggested amendments, we must follow procedure.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker for your guidance and I thank the two Hon. Members who debated. Hon. Gonese largely is supporting the Bill but his main worry is, let us stick to the letter and spirit of the Constitution in terms of professionalism by our Police Service and ensure that the rights of the accused are upheld. I agree and we believe that we need to finalise the Bill and ensure that the necessary legislative framework is there. The Police will work to ensure that they comply with that but by and large; even now the police have been trying their level best to ensure that they uphold the rights of everyone, be it accused or the citizenry.
Having said that, I move that the Bill be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
POLICE AMENDMENT BILL [H. B. 1, 2023]
House in Committee.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI): I move the amendment standing in my name that: In the Preamble on page 2 of the Bill, insert after line 39 (before the enacting formula) the following:
“(4) An Act of Parliament must provide for the organisation, structure, management, regulation, discipline and, subject to section 223, the conditions of service of members of the Police Service.” …
221 Commissioner-General of Police
(1) The Police Service is under the command of a Commissioner-General of Police appointed by the President after consultation with the Minister responsible for the police.
(2) The Commissioner-General of Police is appointed for a five-year term which may be renewed once.
(3) A person who has served as Commissioner-General of Police may not be appointed to the command of any other security service.
(4) The Commissioner-General of Police must exercise his or her command in accordance with any general written policy directives given by the Minister responsible for the police acting under the authority of the President.”
HON. HWENDE: I have a minor suggestion on the Preamble. I have seen that we have added Sections 219, 221 and 223. Is it not possible to add Section 207 which states that: Security forces including the Police Service are subject to the authority of the Constitution and the Executive and are subject to parliamentary oversight?
HON. ZIYAMBI: I agree and propose this amendment to say on the Preamble right at the start so as to read: Whereas sections - we start with 207 now and then we go to 219 and 222. We indicate what 207 says in the Constitution and the additional amendment would be 221 in line 39 that I have already indicated. I submit.
Amendment to Preamble put and agreed to.
Preamble, as amended, put and agreed to.
Clauses 1 to 5 put and agreed to.
On Clause 6:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI): I move the amendment standing in my name that: On page 3 of the Bill in Clause 6, the substituted new section 9 (“Standing Orders”), delete subsection (1) between lines 37 and 39 and substitute the following:
“(1) Subject to this Act, in consultation with the Police Service Commission and with the approval of the Minister, the Commissioner-General may make Standing Orders with respect to the discipline, regulation and orderly conduct of the affairs of the Police Force.”
Amendment to Clause 6 put and agreed to.
Clause 6, as amended, put and agreed to.
Clauses 7 and 8 put and agreed to.
On Clause 9:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendments standing in my name that on page 4 of the Bill, delete Clause 9 between lines 19 and 26 and renumber the subsequent clauses accordingly.
Amendment to Clause 9 put and agreed to.
Clause 9, as amended, put and agreed to.
On Clause 10:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I move the amendments standing in my name that on page 4 of the Bill, delete Clause 10 between lines 27 and 30 and substitute the following clause:
“10 Amendment of section 16 of Chapter 11:10,
Section 10 (“Promotion of non-commissioned members”) of the principal Act is amended by the repeal of subsection (1) and the substitution of—
“(1) Subject to subsection (2), the Commissioner-General, with the approval of the Police Service Commission, may promote any member to any rank other than a commissioned rank.”
Amendment to Clause 10 put and agreed to.
Clause 10, as amended, put and agreed to.
On Clause 11:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendment standing in my name that on page 4 of the Bill, delete Clause 11 between lines 31 and 33 and substitute the following clause:
“11 Amendment of section 18 of Chapter 11:10,
Section 18 (“Reappointments and acting ranks”) of the principal Act is amended by the repeal of subsection (1) and the substitution of—
“(1) The Police Service Commission, on the advice of the Commissioner-General given after consultation with the Minister, may reappoint to the regular force for a specified period or specified periods a person who has retired in terms of this Act, and in that event the person concerned shall be reappointed with such rank, not being higher than the rank held by him or her immediately before he or she so retired, as may be specified by the Commissioner-General.”
Amendment to Clause 11 put and agreed to.
Clause 11, as amended, put and agreed to.
On Clause 12:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendments standing in my name to Clause 12 which is now Clause 11, that on page 4 of the Bill, delete Clause 12 between lines 34 and 41 and renumber the subsequent clauses accordingly.
Amendment to Clause 12 put and agreed to.
Clause 12, as amended, put and agreed to.
ANNOUNCEMENT BY THE TEMPORARY CHAIRPERSON
VISITORS IN THE SPEAKER’S GALLERY
THE TEMPORARY CHAIRPERSON (HON. DR. MAVETERA): Order, I wish to recognise the presence of Gateway Primary School in the Speaker’s Gallery. They are Grade Sevens. You are welcome – [HON. MEMBERS: Hear, hear.] –
THE TEMPORARY CHAIRPERSON: We are now on Clause 13.
Clause 13 put and agreed to.
On Clause 14:
HON. GONESE: Thank you very much Madam Chair Ma’am. This clause Hon. Minister, seeks to oust the rights of members of the Police Service from opting to be charged by the Magistrates Court and if this Bill were to be passed, it would then repeal the current Section 32 in the Act. This section allows members of the Police Service to elect or choose to be tried in a Magistrates Court for disciplinary offences under the Act rather than by a board of officers.
My submission Madam Chair is that this will take away the rights of members of the Police Service. I believe that, that right, although it is constitutional - yes, you can take it away but I do not think that it is appropriate. Let us have a situation where a member may decide that look, I will not get a fair trial by a board of officers. Being a practicing legal practitioner, I know that a lot or some of these trials have not been handled in a very professional manner and some have been set aside on review or appeal. I submit that this right of members to opt that they want to be tried by an impartial court remains.
I know the Hon. Minister is consulting his officials however, I want to make an important point which requires the Hon. Minister’s attention. This is to the fact that Section 29 (a) of the current Act has not actually been repealed. This is the section that gives both the High Court and the Magistrate Court jurisdiction to try disciplinary offences. What it means effectively Madam Chair and Hon. Minister, is that even if you were to remove Section 32 and leave Section 29 (a) intact; you will then have inconsistency because Section 29 will still remain as part of the Act. It allows both the High Court and the Magistrate Court to try cases but, which cases are they going to try when we pass this Bill that removes Section 32?
Apart from that inconsistency, I think the more important point is to uphold the rights of members to choose and say, ‘look, I am not sure that I will get a fair trial’. I know that there will be rights of appeal and so on but why get to that stage? Why not just get the Magistrates Courts to have that jurisdiction so that a member can choose? After all, the Magistrates Courts are presided over by judicial officers who are trained and so on and if the member who is being tried is guilty of any offence, I am sure that the impartial judicial officer will be able to make an appropriate finding and for those reasons, I would submit that this clause should be deleted so that the provisions of Section 32 continue to apply.
I hope Hon. Minister that you will understand and appreciate the logic and gist of my reasoning so that rights of police officers are still protected. They will still be tried anyway.
*HON. CHINOTIMBA: Madam Speaker Ma’am, I want to contribute by saying that the law that applies to civilians and the law that applies to the police, soldiers and other trained people is different. Civilians do not take an oath of loyalty to behave in a certain manner. In both the Police Service and Army, there are oaths that are taken by officers that bind them to certain behaviours.
So for a police officer who has committed an offence, needs no request to be tried in a Magistrates Court that is meant for civilians whilst knowing that they took the oath of being a police officer and knowing fully what is expected of them. So, the issue of taking a trained police officer to a civilian court, in my opinion, does not apply - [HON. ZWIZWAI: Ko Muvevi?] – Ndosaka muri mumajeri, hamuteereri! I am saying that the section that was alluded to should continue being applied so that police officers are not tried in civilian courts but are tried in their own courts. I thank you.
HON. NDUNA: Thank you Hon. Chair on behalf of the people of Chegutu West Constituency. On Clause 14, these institutions that we are talking about are independent. This is not the Salvation Army; it is not church - these people, before they get the tag Zimbabwe Republic Police – it is not a Scouts movement or a Girl Guides. You are moulded and before that you are attested into that force; if you have a flat-foot you do not go there; if you have varicose veins, you may even die during the training process.
My point is, there should be disciplinary mechanisms to deal with delinquent behaviour, including water-boarding. There should be pain inducing measures that are understood by the Police Service and the military. However, all is not lost on the Magistrate Court or the High Court because outside the courts - [HON. MEMBERS: Inaudible interjections.] – Madam Chair, outside the Police Force, if a member of the military or of the Zimbabwe Republic Police (ZRP) commits a crime, they are charged according to the societal tendencies, norms and such like. All is not lost on those who want to criminalise those who are in the police.
We have seen members of the Police Force committing crimes, armed robberies and such like – they are tried in both the Magistrates Court and the High Court respectively. So, if we ask that they be tried in their own enclave for issues committed within the Police Force, it is for the reason that they have been attested into that service or Police Force but if they then commit crimes that are outside the police force. They will still be tried according to the law. So I am alive to the fact that after a Court Martial in the Defence Act, you are able to appeal to the High Court and you go to the highest court of appeal, which is the Supreme Court after which you are bound by the decision of the court.
So it is my thinking that let us leave the police force different from the Salvation Army and Methodist and such like. I say so because I am not a half-baked military person. I should be different from the people that are not military and I should be disciplined according to the ethos, the values, what I appended my signature to. I did not join Parliament, I joined the services and I should be disciplined according to the norms of those services. Those will be my submissions on Clause 14 Madam Chair.
*HON. SEWERA: Thank you Madam Chair. I want to add my voice supporting the previous speakers that this law should be left like that because I was a once a police officer. On this issue, I see that the police have an advantage because they can be tried where they work as well as the Magistrate Office, but when one is being recruited into the police force they take an oath as well as in the army. It is like when you are recruited into the police force and you run away before completion of the training after giving an oath. That is why you are charged for deserting. It applies in the army as well. You do not approach the Magistrate Court. They have their own unique laws because you are not forced to join. If you do not agree with those laws, you should not join because a lot of discipline is demanded in those jobs.
So, for our police officers to be disciplined they should follow the laws of the Police Service Act. These days there are a lot of crimes that are being committed by police officers. It is all because of indiscipline which is not wanted in the police force. So discipline is very vital in the police force. We cannot tamper with that part because we will not be able to control them. They first should be tried under the Police Service Act then if they feel that they have not been tried fairly then they can appeal at the Magistrate Court. Thank you Madam Chair.
*HON. MADZIMURE: Thank you Madam Speaker. Madam Speaker there are a lot of issues concerning discipline which are happening in the police force. Right now as we are speaking, the police officers are going through refresher courses. Some are refusing to do that and they are being charged for indiscipline because they do not agree to what they are being taught because it is against the oath they took of upholding the Constitution.
What I am saying Madam Speaker is that there is nothing wrong for a police officer to say I want to be tried before a board because of sour relations. People are just people. A person can join the police because they want to do what the Constitution demands which helps the country. So you cannot force them to be tried by the Police Service Act when they know that they will not receive a fair judgment.
I do not see any challenge when a police officer chooses to approach the Magistrate Court or the board. If the magistrate presides well that is okay. Humans do not operate like animals. You cannot force them to do things which are contrary. They should go to work not as slaves but as free people. If you are a police officer that does not mean that you have to agree to everything that you are told to do. If you dispute, then you are sent for the court marshal and without an option to choose whether what you have committed as a crime can be tried by the magistrate or the board.
So my issue Madam Speaker is that let us leave it open like that. You can approach the Magistrate Court with your crime or you approach the board. There are other crimes that are committed by police which are purely criminal which should be tried by the courts. If you are told to go and arrest a suspect and you do your own thing that is different but one should have a choice because we are all people who should be given an opportunity to be tried fairly.
As this august House, our mandate is to make laws which are good for everyone not what we think we want them to do. These people do not have representation here. It is us who should make laws that apply to everyone because we work for all the people. Those are my submissions. They should be given an opportunity to choose.
HON. NGULUVHE: I just want to give a comment. I think we must also understand that a police force or a police service is a trend more or less quasi military and these people rely on discipline. In any force if there is no discipline you cannot control that force. Discipline counts. We cannot rely and say we go to the courts otherwise you give them order to say let us go to the courts first to see whether we can go and fight or not.
So we should understand that a force or a service like police...
HON. HAMAUSWA: On a point of order Madam Chair.
THE TEMPORARY CHAIRPERSON: Yes, what is your point of order?
HON. HAMAUSWA: I encourage the Hon. Member to speak of the police services and not the police force. The Police Service and the Police Force are two different things. The force reminds us of the Smith regime –[HON. MEMBERS: Inaudible interjections.]-
*HON. NGULUVHE: Noted, I withdraw. I am talking of the services. All I am trying to say is that the service – [AN HON. MEMBER: Inaudible interjection.]- We are not talking about the war. You did not fight in the liberation struggle, you were still a child.
What I am saying is that when we are referring to a service that is under command, we cannot say that we want to rush to the courts because we do not agree with the order that you have been given whether it is lawful or not. What is happening is that when you are in the service and you are given an order and you feel that you have not been tried fairly you are first tried by that service. Then you go through the system but if you are not happy with the judgement and you believe that you have not been judged rightfully or lawfully, you have the right to appeal. The law must say the service would use the law of the force. If you are not happy with the judgement, you can go outside, not that you should be given the leeway to choose. If we do that, it will not work. Let us not think that way but if we want your service to be effective, then we need to consider that. That is my comment. I thank you.
*HON. HWENDE: Thank you Madam Chair. The problem that we are facing is that we do not understand what the Constitution says and the Constitution was changed from the Police Force to the Police Service. It is important that we understand and not be confused. We need to expand the rights of the Police Service instead of limiting our police – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY CHAIRPERSON: Order Hon. Members, may you please lower your voices.
*HON. HWENDE: If we change Section 32, whilst leaving Section 29 (a) of the same Act – well, I think it is okay if the Minister agrees. We have reached an agreement with the Minister. I thank you.
HON. NDUNA: Thank you Madam Chair. The Constitution, which has ushered in the Police Service Commission and also in Section 193 of the Criminal Jurisdiction of Courts states unequivocally clearly without any shadow of doubt that in subsection (a), the Constitutional Court, the Supreme Court, the High Court and the Magistrate Court, in subsection (b) of the same section, a court or tribunal deals with cases under disciplinary hearing to the extent that the jurisdiction is necessary for the enforcement of discipline in the disciplined forces concerned.
You cannot come from DRC and seek to come to Mbare Magistrate Court when in the line of fire or in the forefront you have been delinquent in your way of operation. I tell you to fire and you tell me your finger is sore and you elect to come to Mbare Magistrate Court, how ridiculous can that be? If you do not agree with the law, you do not try and pilfer or smuggle something nocturnally through the back door. You change the law. If Members feel strongly about what the Constitution says, which is sui-generis - in a class of its own, which is the supreme law of the land, then they need to change the law. There are ways of changing the law but whilst we have this provision here.
Hon. Minister, I completely applaud your stance in terms of aligning with the law. Do not - I pray, bring somebody from the front line to Mbare Magistrate Court. Go ahead and include that section in the Act that deals with disciplinary hearing because it was aligned with the Constitution. In the Eighth Parliament, we had the General Laws Amendment Bill that consequentially aligned to the Constitution about 122 pieces of legislation. So this process should not be hampered because of ignorance of the law. It is no defence. I have said time without number, let us say what the law says. What is it saying and we should not be frivolous and vexatious, saying anything that is ultra vires the law. I agree with you Hon. Minister. Go ahead, yes, and align the Police Service to the Constitution.
HON. R. NYATHI: I just wanted to say when you are in the army there is what we call a Defence Act, which determines the cases or the state of a person who has wronged. In normal circumstances, all people who are in the Defence Force are also judged in terms of the Defence Act. Yes, we have the Police Service but they also have their own Act through which their members are judged whenever they do wrong. So, I concur with the opinion of the Minister of Justice that we keep it as it is because it is proper. It is also in consistence with the Constitution of the land. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I would like to thank the Hon. Members. I want to start by thanking Hon. Gonese for highlighting an error that he picked up that there were inconsistencies between Section 29 and the proposed deletion of this clause will create an inconsistence. I do not agree with him on the fact that at the first instance, discipline of members of the Police Service should be given a leeway to say I do not want to be disciplined within the force but by a magistrate.
Hon. Chair, we are talking about a disciplined force whose members like what the other Hon. Members have alluded to, when you join the Police Force or the army, you become aware that you are supposed to be a member of a disciplined force and there is a certain level of discipline that you are supposed to uphold. It is like you join a football team, you do not then after the football match go and report that I was kicked or assaulted. You were fully aware that once I go into that field of play I may be kicked, my leg may be broken but you do not go and report grievous bodily harm because of a tackle in a field of play. Likewise, you follow the procedures and the rules of that game.
So, if you decide that you want to go and join the Police Service, you must allow yourself to be subjected to the disciplinary procedures that ensure that we have a disciplined force. I believe that at the first instance, the members must be subjected to the discipline within the force. It will increase the discipline that particular force will have. So in that regard, I disagree with Hon. Gonese but I want to thank him because he made me become aware that there were some inconsistencies.
I would then propose an amendment that we insert the following new clause after the existing Clause 13 and this becomes new Clause 14: Amendment of Section 29 (a) that is trial of a member for an offence and jurisdiction of court or tribunal. That Section 29 (a) is amended in subsection (1) by the repeal of paragraph 6 and it then becomes consistent. I owe it to Hon. Gonese for being very alert and Hon. Hwende also, but I do not agree that if you are a football player, you then say I want to go and report you to the police for breaking my leg. If you are within the Army, you can actually be killed in a battle. It is not murder, you subscribed to it.
Hon. Chair, correction. Let me re-read it so that you can capture it correctly. I am proposing that we insert the following new clause after the existing Clause 13 and it becomes Clause 14. “Amendment of Section 29 (a), trial of a member for an offence and jurisdiction of a court or tribunal - Section 29 (a) is amended in subsection (1) by the repeal of paragraphs (a) and (b). Then you can appeal later”. So, we leave board of officers and an officer in terms of Section 34.
HON. GONESE: I firstly wish to acknowledge the appreciation from the Hon. Minister and expression of his gratitude that I had pointed out the omission or error on the Bill. Be that as it may, I do appreciate that the clause in question is constitutional although from the bottom of my heart I would have wanted a situation where police officers remain with a choice as to where to be tried. With a heavy heart, I will accept what they are saying because at least it is in line with the Constitution. I cannot belabor the point. I have made my point that it would be fair to allow people to choose. I also want to point out that in fact the Army can actually be tried by a civilian court in terms of the Defence Act. There is that choice. Thank you.
Amendment to Clause 14 put and agreed to.
Clause 14, as amended, put and agreed to.
Clause 15 put and agreed to.
On Clause 16:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I propose another amendment in my name to Clause 16. I am proposing deletion of Clause 16. On page 5 of the Bill, delete Clause 16 between lines 9 and 12 and renumber the subsequent clauses accordingly. I thank you.
Amendment to Clause 16 put and agreed to.
Clause 16, as amended, put and agreed to.
Clause 17 put and agreed to.
On Clause 18, now Clause 17:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I am proposing amendment in my name, the insertion of a new clause after Clause 18.
On page 5 of the Bill, insert after Clause 18 (now clause 17) Clause 6, the following:
“18 New section inserted in Cap. 11:10
principal Act is amended by the insertion of the following section after section 61 —
“61 Protection of Police Property
(1) In this section—
“notified mark” means any mark, marks or insignia notified for the purposes of subsection (2).
“(1) The Minister may, by notice in a statutory instrument, declare and make known what mark, marks or insignia shall denote that an item on which it appears (including any arms, clothing, equipment, animal, vehicle, aircraft or boat used by the Police Service on duty) is the property of the Police Service.
(3) Any person who—
(a) applies to any arms, clothing, equipment, animal, vehicle, aircraft or boat or other thing whatsoever any notified mark with the intent that it should be mistaken for being the property of the Police Service on duty; or
(b) defaces or conceals any notified mark with the intent that it should be not be identified as being the property of the Police Service; or
(c) without the leave in writing of the Commissioner-General unlawfully receives, possesses, advertises, delivers or otherwise deals with anything whatsoever bearing the notified mark that is used by the Police Service on duty, including any arms, clothing, equipment, animal, vehicle, aircraft or boat;
Shall be guilty of an offence and liable to a fine not exceeding level 6 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”
“19 Substitution of section 66 in Cap. 11:10
Section 66 of the principal Act is repealed and substituted by —
“66 Wearing of uniforms, badges, etc of Police Service
(1) In this section—
“uniform” means any article or apparel, including a badge, button, braid or insignia worn with any particular items of clothing, designed for the use of the Police Service.
(2) No person shall be allowed to be in possession of, manufacture, trade, sale, exchange or dispose of or wear any uniform, badge, button, braid or insignia designed for the Police Service or anything which might reasonably be mistaken for any such uniform, badge, button, braid or insignia unless the person—
(a) is a member of the Police Service entitled by reason of his or her appointment, rank or designation to wear such uniform, badge, button, braid or insignia; and
(b) is a manufacturer or trader of the items in question lawfully contracted by the Police Service to make the items in question on behalf of, or supply or sell them to the Police Service alone;
(c) is an entertainer or agent of an entertainer who is permitted in writing by the Commissioner-General of Police to wear the items in question or avail them to be worn by his or her principals, colleagues, associates or employees on specified occasions and places and for a specified time.
(3) Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level 6 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”
Amendment to Clause 18, now Clause 17, put and agreed to.
Clause 18, now Clause 17, as amended, put and agreed to.
On Clause 19:
HON. HWENDE: I want to ask the Hon. Minister if he has seen that this might be inconsistent with the Constitution particularly Section 50 (9), of the Constitution which says ‘Any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but a law may protect the following persons from liability under this Section.
(a) A judicial officer acting in a judicial capacity reasonably and in good faith;
(b) Any other public officer acting reasonably and in good faith and without culpable ignorance or negligence. I want to ask the Minister if he has seen that this might actually be inconsistent with the Constitution. Thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): We are not removing that one, it is remaining but we are removing the rest.
Clause 19 put and agreed to.
On Clause 20:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I propose amendments in my name, a new Clause substituted for Clause 20. We will renumber accordingly. On page 5 of the Bill, delete Clause 20 at the end of the Bill and substitute the following:
Clause 20, Amendment of Section 72 of Cap. 11:10
Section 72 (“Regulations”) of the Principal Act is amended-
- by the repeal of subsection (1) and the substitution of-
“(1) Subject to this Act and Section 223 (2) of the Constitution, the Police Service Commission, in consultation with the Commissioner General and with the approval of Minister, may make regulations providing for all matters which in terms of this Act are required or permitted to be prescribed or which, in his opinion, are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(b) in subsection (2) by the insertion of the following paragraph after paragraph (n)-
(o) the grievance procedure to be followed by members, including the manner of lodging, processing or settling and grievance arising from a policy, directive or standing order of the Commissioner General in the discharge of the Commissioner General’s office”.
Amendment to new Clause 20 put and agreed to.
New Clause 20, as amended, put and agreed to.
Bill reported with amendments.
Bill referred to the Parliamentary Legal Committee.
THE TEMPORARY SPEAKER (HON. KHUMALO): Order Hon. Members.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker Sir. I want to thank the Hon. Members who have dedicated their time this Friday so that we can deal with our outstanding Bills, more specifically the Police Amendment Bill. I want to thank them for the enriching contributions that will ensure that our laws will be for the good governance of our people. Having said that, I now move that the House do now adjourn.
Motion put and agreed to
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House adjourned at Four Minutes to Eleven o’clock p.m. until Tuesday, 7th February, 2023.