Concerning Spot Fines on Zimbabwe’s Roads

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    The major arterial roads of Zimbabwe are a popular place of work for members of the Zimbabwe Republic Police (ZRP), the national police service. As one approaches or leaves a major city, town or township, there is a sure guarantee that you will encounter a police road-block.

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    By Dr Alex T Magaisa

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    Here, eager police officers signal you to stop. An officer will approach you slowly, wearing a serious face and a folder in hand, expressing authority. He will carefully inspect and scrutinise your vehicle with searching eyes and ask some questions. More often than not, he will discover a fault.

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    Sometimes they find a secluded spot on the highway and there they lurk behind, awaiting unsuspecting motorists. And as you drive through, an officer holding some gadget will suddenly leap onto the side of the road, announcing his presence and demanding that you stop your vehicle. Thereupon he will advise that you were driving above the speed limit. He will declare that you have broken the law. There is no room for disputing this declaration, which is given as fact.

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    And then he will advise you that he is going to penalise you. He will impose a fine and write a ticket. Under the laws of the land, as a motorist you have a reasonable period within which to make payment at their nearest police station, usually seven days. You may of course choose to exercise your right to challenge the imposition of the penalty. You are entitled to do that, because the laws of the land recognise one’s right to a fair hearing.

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    But more often than not, it is the culture on the roads that when the police officer decides that you are guilty and advises that he is to impose a penalty, the motorist will plead for clemency. He will ask to be forgiven. Or he will plead poverty and say that he does not have the money for the fine.

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    To all this, the police officer may, in return, demand that the motorist leaves some “kokokora” (Coca-Cola) – a euphemism for a bribe. The value of this “Coke” is often pitched a few rungs below the official penalty, to make it more attractive.

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    The motorist will perform a rudimentary cost-benefit analysis feel it is a lesser burden than the alternatives. So he will elect to leave the “Coke” and thereafter, the officer will suddenly discover that there is no fault with the vehicle after all and will wave you to proceed with your journey.

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    If you want to be a law-abiding character and insist on your rights to pay the fine at the police station, they will direct you to the side of the road. There you will stay until they decide to take you to the station. There is no limit to how long you will remain there. It could be all day. And worse still, your vehicle may be impounded, presumably until you pay the spot fine.

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    A motorist who has business to attend to and a journey to complete in time does not wish to be inconvenienced in this way. He does not want the delays that are occasioned by his insistence on his rights. If he is a transport operator, carrying scores of passengers, they might even urge him – “ngaangobhadhara tiende” (why doesn’t he just pay so that we can proceed with our journey). This is what they say and the driver has no choice.

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    The driver will get out of the vehicle. He and the police officer will walk towards a bushy area and behind it, the necessary exchanges will be done. Then the bus will proceed. This is the way it is, regrettably.
    \nThus even if the Pope was driving in Zimbabwe, he would have to temporarily forget his vows and do what is necessary in order for him to get on with his business.

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    This is what goes on. The public know it. The Government knows it. Everyone knows it. And now a judge of the High Court has spoken about it. And this has generated a great deal of excitement and controversy.
    \nSpeaking at the official opening of the Legal Year in Masvingo Province, Justice Bere criticised police for their conduct on the roads and remarked that the manner in which they administer the spot fines regime had no basis at law.

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    The reaction of the police authorities has been defensive. They have dismissed Justice Bere’s view as “a personal opinion” and stated that they are under no obligation to follow it. They have defended their practice of compelling motorists to pay fines on the spot for traffic offences.

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    It is a matter that has generated a rare show of unity across members of the public from different political ranks and parties. This is unsurprising, because as with problems regarding public goods, such as electricity and water shortages, the application of spot fines by police affects everyone and does not discriminate between members of different political parties.

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    Whilst acknowledging that the judge’s comments may have legal merit, Government has, through Information Minister, Professor Jonathan Moyo chastised him for making “pre-mature” pronouncements on an issue outside a court of law as if he were delivering a judgment.

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    But this harsh criticism is unfair upon the judge. To say his pronouncement is premature is to demonstrate a serious failure on the part of Government to recognise that the courts have, in fact, already made judicial statements on this matter. If anything, Justice Bere is merely restating what has been judicially stated before, in a court judgment.

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    In the case of 2012 case of Zaine Babbage v The State (HB157/12), Justice Cheda summarised, in my view correctly, the law regarding these types of cases where police issue penalties for offences on the road. He stated clearly that when a ticket has been issued, the alleged offender must be given a reasonable period within which to pay the fine.

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    There are only limited circumstances in which the court is entitled to use its discretion to collect the fine by other measures such as were the alleged offender is a foreigner or where there is insufficient documentation to trace the alleged offender to ensure that they pay. The judge made it clear that the police officer cannot and must not insist on a spot fine simply because he does not have the necessary ticket book to carry out his function.

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    Therefore, unbeknown to Government or in this case, more specifically the Information Ministry, Justice Bere is not making any premature statement because these statements have already been made before, by a competent court of law. Judges are not precluded from commenting upon the law that has already been pronounced. If anything, Government should be encouraging police to abide by the judicial guidance that already exists. But of course, not unusually the guidance of Jusice Cheda was not heeded, by Government or by the police authorities, because they are inconvenient.

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    They are inconvenient because as most know, the police authorities have been converted into a revenue-collecting agency. This follows the pattern in other public authorities such as the national roads authority (ZINARA), which collect toll-fees. The Government policy by which these revenue-collecting agencies keep what they collect for their own use, without accounting to the national treasury is, of course, a national scandal. It is this issue of lack of accountability, quite apart from the virulent strain of corruption that I have described at length at the start of this article.

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    What the judge was stating was that there is no law that gives power to the police to act in the manner they do on the roads. In their responses, neither the police nor the Government have rebutted his argument by demonstrating the legal instruments under which they base their actions. They have not availed the legislative provisions which give them the authority to continue on their usual path.

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    It is surprising that they have chosen to respond to the speech by Jusice Bere, but failed in 2012 to respond to a judgment issued by Jusice Cheda. Of course, it was inconvenient to respond to judicial guidance in a court judgment. It is easier to be dismissive of Justice Bere’s out-of-court remarks but much harder to react to the judicial statements made by Justice Cheda.

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    The police say they “encourage the public to continue co-operating with the police on all activities to ensure the smooth delivery of justice in the country and maintenance of law, order and security”. With respect, there is scarcely any justice on the manner in which the police administer the imposition of spot fines. Justice is as the law provides, that a person has an opportunity to pay within a reasonable time at the nearest police station or to challenge the decision.

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    These facilities not only permit the affected motorist to avoid inconveniences but they also minimise the risk of having the police as the prosecutor, judge and jury in their own cause. The motorist is permitted to challenge the imposition of the penalty before a neutral party. That is justice. Not what is currently being done.

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    There is, of course, a constitutional point in all this, one that cannot be overlooked. These rights are encapsulated in the right to a fair hearing, provided for under s. 69 of the new Constitution of Zimbabwe. S. 69(1) states that,

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    “Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court”.

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    It states further, in s. 69(3), that,

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    “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”.

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    It should be added that the right to a fair trial is one of the rights that are specially protected under s. 86(3) which states that this special class of rights shall not be limited under any law. To the extent that the imposition of spot fines and the manner in which the penalty is administered abrogates the right to a fair trial, such conduct or any law upon which is based is arguably unconstitutional.

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    Spot fines as currently administered are, arguably, in violation of these fundamental rights. A person must have the right to access the courts to challenge the spot fine and this should not be rendered useless by police practice that involves the impounding of vehicles.

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    Having said this, and seeing that the police are unwilling to budge and that Government does not seem to be in a mood to encourage them to comply with the law, the best course of action would be for a member or members of the public to bring a specific legal challenge before a court of law.

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    Granted, Justice Bere may have to recuse himself if the matter were to fall on his judicial desk, but the fact that he made remarks on this matter does not mean all other judges are compromised. A clear determination probably by the highest court of the land, the Constitutional Court, is probably the best solution in the circumstances.

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    This article was first published at www.newzimbabweconstitution.com and the writer can be contacted on wamagaisa@yahoo.co.uk