Assistant Inspector Mbwembwe and Others v The Trial Officer (Superintendent Mkandla) and the Commissioner General of Police

Four members of the Zimbabwe Republic Police were charged in a criminal court with contravening sections 136 (fraud), 137 (forgery), or alternatively section 174 (criminal abuse of duty as a public officer) of the Criminal Law (Codification and Reform) Act. In October 2014, before the criminal trial concluded, they were also charged with a disciplinary offence under paragraph 35 of the Schedule to the Police Act for acting in a manner prejudicial to good order or discipline or bringing discredit to the Police Force. They were convicted at the disciplinary hearing before a single officer (Superintendent Mkandla) and sentenced to 14 days imprisonment and a $10 fine, and were subsequently discharged from the Police Service. The applicants were later acquitted of the criminal charges. They sought a declaratur that their conviction and sentence by the police force constituted double jeopardy and was wrongful and unlawful, and sought reinstatement.

• Whether disciplinary proceedings under the Police Act amount to criminal proceedings for purposes of the constitutional protection against double jeopardy under section 70(m) of the Constitution
• Whether being tried for a disciplinary offence arising from the same facts as criminal charges constitutes being tried for the same offence
• Whether section 278 of the Criminal Law (Codification and Reform) Act, which permits disciplinary proceedings after criminal proceedings, violates section 70(m) of the Constitution
• Whether the Standing Orders Volume 1 paragraph 45.3 which states members charged with criminal offences shall not be tried by police tribunals ousts jurisdiction from internal disciplinary proceedings

The application was dismissed with costs.

Disciplinary proceedings under the Police Act do not constitute criminal proceedings for purposes of the constitutional protection against double jeopardy in section 70(m) of the Constitution. A person charged with a disciplinary offence arising from the same facts as a criminal charge is not being tried for the same offence, as disciplinary proceedings address internal discipline, professional conduct and maintaining public confidence in the institution, which are fundamentally different from criminal liability. Section 278 of the Criminal Law (Codification and Reform) Act, which permits disciplinary proceedings before, during or after criminal proceedings, does not violate section 70(m) of the Constitution. A conviction or acquittal in disciplinary proceedings under section 34(9) of the Police Act is not regarded as a conviction of an offence for purposes of any other law, and therefore applicants facing disciplinary charges are not in jeopardy of being convicted of the same criminal offence.

The court observed that Standing Orders Volume 1 paragraph 45.3, which requires criminal offences to be dealt with by courts rather than by boards of officers or single officers, serves the important purpose of promoting transparency and fairness. It ensures that police officers who violate criminal laws are subjected to the same independent criminal justice process as ordinary members of the public, rather than being dealt with internally, which enhances openness and credibility. The court noted that while the procedure before a single officer under section 35 of the Police Act may be similar to criminal proceedings, this relates to form rather than substantive content of the offence. The court also commented that transparency in how officers who violate the law are dealt with is critical, and it would be improper for criminal conduct to be dealt with through internal disciplinary processes rather than through the criminal justice system.

This case provides important guidance on the distinction between criminal proceedings and disciplinary proceedings in Zimbabwe, particularly for members of disciplined forces. It clarifies that the constitutional protection against double jeopardy under section 70(m) does not prevent disciplinary proceedings arising from the same facts as criminal charges, as these constitute different offences serving different purposes. The judgment confirms that section 278 of the Criminal Code, which explicitly permits disciplinary proceedings regardless of criminal proceedings outcomes, is constitutionally compliant. The case reinforces that disciplinary tribunals for police officers serve the distinct purpose of maintaining professional standards, public confidence, and internal discipline, which is separate from the determination of criminal liability. It also clarifies the proper interpretation of police Standing Orders regarding when criminal matters must be dealt with by courts versus internal tribunals.