Tawanda Mawere v Commissioner General of Police N.O and Superintendent Ngirazi N.O

The applicant was a police constable based at ZRP Mbembesi who attended the scene of a road traffic accident on 15 September 2016 involving the death of Pastor Charles Chiriseri at the 388 km peg along Harare-Bulawayo road. The applicant and two others were charged with theft in a criminal court, accused of stealing $200 recovered from the deceased's body. On 12 September 2017, they were found not guilty and acquitted. Subsequently, the police authorities charged the applicant under the Police Act for acting in an unbecoming manner or in a manner likely to bring discredit to the Police Service, based on the same facts. The disciplinary trial was scheduled to commence before the second respondent in Harare on 4 April 2018. The applicant launched an urgent application seeking to interdict the disciplinary proceedings, arguing it amounted to double jeopardy, and objecting to the venue being moved from Bulawayo to Harare.

• Whether a police officer who has been acquitted in criminal proceedings can be subjected to disciplinary proceedings under the Police Act for the same conduct
• Whether disciplinary proceedings under the Police Act constitute criminal proceedings for purposes of the constitutional prohibition against double jeopardy in section 70(1)(m) of the Constitution
• Whether the court can interdict the police disciplinary authority from choosing the venue for disciplinary proceedings
• Whether the defence of autrefois acquit applies to disciplinary proceedings following criminal acquittal

1. By consent, the disciplinary trial of the applicant shall take place at the original venue in Bulawayo and not Harare. 2. The application for an interdict against the disciplinary trial is hereby dismissed. 3. Each party shall bear its own costs.

Disciplinary proceedings under the Police Act are administrative in nature and distinct from criminal proceedings, notwithstanding the use of criminal terminology. A conviction or acquittal in criminal proceedings does not bar subsequent disciplinary proceedings in relation to the same conduct. Section 70(1)(m) of the Constitution, which prohibits double jeopardy, applies only to criminal prosecutions and does not extend to disciplinary proceedings. Section 278 of the Criminal Law (Codification and Reform) Act expressly permits civil or disciplinary proceedings to be instituted against members of disciplined forces regardless of whether they have been convicted or acquitted in criminal proceedings for the same conduct. The Commissioner General of Police has administrative authority under the Police Act and section 221 of the Constitution to enforce discipline within the Police Force, including preferring disciplinary charges for conduct that may also constitute a criminal offence. The charges under criminal law (theft) and disciplinary law (conduct unbecoming/bringing the Police Service into disrepute) are legally distinct offences even when arising from the same factual matrix.

The court noted that the respondents' concession regarding the inappropriate relocation of the disciplinary trial to Harare, which caused prejudice to the applicant, justified the decision not to award costs despite the respondents succeeding on the main application. The court observed that what is lawful cannot be interdicted. The court also noted that the applicant was attempting to use the interdict application to prevent disciplinary proceedings based on a non-existent case he wished to pursue by way of review, describing his position as "standing on sinking sand."

This case is significant in Zimbabwean law as it clarifies the fundamental distinction between criminal proceedings and disciplinary proceedings under the Police Act, confirming that police officers remain subject to internal disciplinary action regardless of the outcome of criminal prosecutions for the same conduct. It reinforces the administrative authority of the Commissioner General of Police to maintain discipline within the force. The judgment provides important interpretation of the interaction between section 70(1)(m) of the Constitution (protection against double jeopardy), section 34(9) of the Police Act, section 193(b) of the Constitution, and section 278 of the Criminal Law (Codification and Reform) Act. It establishes that the same conduct can give rise to both criminal and disciplinary sanctions without violating constitutional protections, and that the defence of autrefois acquit has no application in disciplinary proceedings. The case follows and applies earlier High Court decisions in Nkululeko v Commissioner General of Police (HB 11-16) and Sangu v Commissioner General of Police (HB 149-17).