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Fidelicy Nyamukondiwa
The right to privacy is
a constitutionally protected human right. This right includes the right of
persons not to have their body, home, premises or property searched. It also
encompasses the right not to have homes or premises entered without permission.
In view of these constitutional provisions, is it legal for a police officer to
enter premises or vehicles and conduct a search without a warrant? This
editorial seeks to clarify the position of the law regarding police searches.
Limitation
of human rights.
The fact that a person
has human rights does not mean that all those rights cannot be interfered with.
The law permits certain rights to be restricted. Such restrictions on the
enjoyment of human rights are called limitations. Section 66 of the
Constitution for example provides that “every Zimbabwean citizen…has the right to move freely within
Zimbabwe.” Can u freely move within
Zimbabwe during the ongoing COVID-19 lockdown?
You can’t because your right to freely move is being limited through Statutory Instrument 83 of 2020.
There are however some rights which cannot be limited
under any given circumstances. These are known as absolute or unfettered
rights. The right not to be tortured is one example of an
absolute right.
Limitation
of privacy rights.
The right to privacy is
not an absolute right. It is limitable. The Criminal
Procedure and Evidence Act (CPEA) is the principal law setting out the
grounds upon which the right to privacy can be limited. As hinted prior, the
right to privacy includes the right not to be searched. The CPEA empowers the police
to conduct searches both with and without warrants. A warrant in this context is a document issued
by a magistrate or judge authorizing the police to conduct a search.
The CPEA provides that
a police officer, after properly identifying self, can search a person or premises
and thereafter seize articles without a warrant. The person to be searched or
the owner/occupier of the premises or vehicle concerned must however give
permission to the search.
Ironically, where a
police officer intending to search premises or a vehicle fails to get
permission, he or she is allowed at law to break open doors or windows for the
purpose of entering and searching. Such powers must however be exercised
reasonably and without malice or negligence. A police officer who acts maliciously
or negligently can be sued. Simply put, the victim can be compensated by any
malicious or negligent police officer.
The main purpose of
searching is to seize articles. Articles that can be seized includes articles
with something to do with the commission of offences. It must be emphasised
that where the delay involved in obtaining a warrant would defeat the purpose
of the search or prevent seizure of relevant articles, a police officer is
allowed at law to search for and seize articles without a warrant.
Consider a police
officer who receives a tip off to the effect that the person walking across the
street is in possession of recently stolen items. Should the police officer
first proceed to the police station, type out paperwork and thereafter look for
a magistrate to issue a search warrant? In such cases, a police officer is
permitted to search without a warrant.
Issue
of receipts
Where a police officer
seizes certain articles, he/she is mandated to issue what is known as a full receipt. This receipt must be handed to the owner of
the articles. If however the owner is arrested, he/she can only be handed the
receipt after being released. Upon
release, the person from whom articles were seized has a right to demand and
receive the full receipt. Failure by a police officer to issue a full receipt
upon demand is a criminal offence.
If the owner is
unavailable or is arrested, the full receipt must be given to the person in
charge of the premises or vehicle from which the article is seized. In the
absence of a person in charge, a copy of the receipt must be handed to any
other ‘apparently responsible person’ present at the premises or in the vehicle
concerned. Where no one is present, a copy must be attached or left at the
premises, land or concerned vehicle.
Again, a police officer can be arrested for a failure to issue a full
receipt.
Conclusion
Every person has a
right to privacy and this right includes the right not to be searched and not
to have premises entered without permission.
This right, like many other rights is not an absolute right. It is subject
to limitations. Police officers are empowered at law to search persons,
premises or their vehicles even without a warrant. Where necessary, they are
allowed to break open doors or windows for the purpose of searching.
Disturbing police
officers executing their duty is an offence punishable with imprisonment. It is
also a criminal offence to obstruct the course of justice or to resist a lawful
arrest. Failure by a police officer to issue a full receipt after seizing
property is a criminal offence. Citizens and law enforcers must therefore be
acquainted with basic provisions of the law for Ignorance of the law is not a
defence.
