Constance Mujeyi and Others v The Officer in Charge Harare Central Police Station (Investigations) and Others

Three applicants were detained at Harare Remand Prison pending trial on charges of theft of large sums of money allegedly stolen in South Africa. They had been denied bail by the High Court following an appeal by the state prosecutor. The applicants' mother deposed to an affidavit alleging that while in remand prison, the first and second respondents (officer in charge of investigations and the investigating officer) routinely requisitioned the applicants from prison to parade them in Chitungwiza as dangerous thieves, and subjected them to beatings in public. She alleged that the police were conducting interrogations without the applicants' legal practitioner present, drafted affidavits for the applicants to sign admitting the allegations, and allowed the South African complainant to enter their cells and brutalize them. She further alleged that R60,000 was taken from the applicants, of which R50,000 was declared but not surrendered to court as an exhibit, with police promising to release it to the complainant upon signing of confessions.

• Whether the alleged conduct of the respondents constituted torture and cruel, inhuman or degrading treatment in violation of section 53 of the Constitution
• Whether the applicants' right not to be compelled to make a confession or admission under section 50(4)(c) of the Constitution was violated
• Whether the applicants were denied their right to consult with a legal practitioner in private under section 50 of the Constitution
• Whether a court can interdict police from conducting criminal investigations and taking suspects from remand prison
• Whether an affidavit deposed to by a person other than the applicant (the mother) was admissible

The court granted a provisional order with the following interim relief: (1) The respondents are directed to stop any torture that is or may be perpetrated against the applicants or treating the applicants in any unlawful manner; (2) The 4th respondent is directed not to allow the complainant access to the applicants at remand prison. The court did not grant the relief interdicting police from taking applicants out of prison for investigative purposes.

The binding legal principles established are: (1) Section 44 of the Constitution commands the state and every government institution and official to respect, protect, promote and fulfill the rights and freedoms in the Bill of Rights; (2) The constitutional right against torture under section 53 and the right not to be compelled to make confessions under section 50(4)(c) are fundamental and non-derogable; (3) Courts must take complaints of infringement of constitutional rights seriously and promptly investigate them with a view to arresting such infringement without delay; (4) Torture of criminal suspects and assault or intimidation to force confessions is unconstitutional, unacceptable and must be condemned in the strongest terms; (5) Courts must not reward such unlawful conduct at trial; (6) However, courts cannot unduly interfere with the constitutional power of police to detect, investigate and prevent crime, including the taking of remand prisoners for legitimate investigative purposes; (7) An affidavit in support of an application may be made by a person other than the applicant who can swear to the facts averred therein, in accordance with Rule 227(4).

The court made several non-binding observations: (1) Draft provisional orders must comply with Form 29C as provided in the rules, and legal practitioners should not invent their own alien drafts; (2) Criminal investigations must be conducted by police using intellect and smartness, not by force and power; (3) It is 'amazing' that several years into independence and democracy, complaints of torture of criminal suspects still occur in Zimbabwe; (4) Zimbabwe is a constitutional democracy with a proud history of adherence to the rule of law; (5) Sensational and overdrawn averments do not attract sympathy with the court and amount to unnecessary exaggeration and overkill which may discredit an otherwise well-intended application; (6) The conduct of respondents in approaching suspects after receipt of the application to solicit evidence against their own application in the absence of their legal practitioner was 'blatantly unprofessional conduct' and represents how low parties are prepared to sink to win a case.

This case is significant in Zimbabwean constitutional jurisprudence for its strong affirmation of the constitutional prohibition against torture and cruel, inhuman or degrading treatment under section 53 of the Constitution, and the right not to be compelled to make confessions under section 50(4)(c). The judgment provides important guidance on balancing the constitutional mandate of police to investigate crimes against the fundamental rights of suspects in detention. It represents a judicial condemnation of torture and forced confessions in criminal investigations, while recognizing the legitimate investigative functions of law enforcement. The case also demonstrates the court's willingness to grant urgent interim relief to protect constitutional rights of remand prisoners, and establishes that courts must take complaints of torture seriously and investigate them promptly. The judgment's criticism of soliciting evidence from suspects in the absence of their legal practitioner after an application has been filed also reinforces professional and ethical standards in criminal proceedings.