By Mary Taruvinga
THE Passengers Association of Zimbabwe (PAZ) has filed an appeal against a High Court judgment empowering the police to use spikes when dealing with private and public motor vehicles.
PAZ, together with private taxi “mushikashika” driver Bernard Murizani had dragged Police Commissioner-General Godwin Matanga together with Police Service Commission and Home Affairs minister Kazembe Kazembe to court demanding a ban on the use of spike and tear gas.
But High Court judge, Justice Owen Tagu dismissed the application noting that while the application was noble, “the court could not disempower the police from enforcing law and order as there were times when the use of spikes would prove necessary.”
In its appeal, PAZ complained that Tagu sanctioned unconstitutional conduct.
Reads their application, “The High Court erred and misdirected itself in making a finding that the use of spikes, smashing of windscreens and throwing of teargas in public transport by the ZRP officers leading to damage to property, bodily injuries and loss of lives of passengers and other members of the public does not amount to violation of the rights to life and to personal security as ingrained on section 48 and 52 respectively of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.
“The High Court further erred and misdirected itself in finding that illegal conduct of illegal transport operators, colloquially known as mushikashika justifies or necessitates the use of excessive use of force outside the parameters stipulated under section 42 of the Criminal Procedure and Evidence Act.”
The respondents had challenged the application and submitted that the use of spikes and teargas was a must as it is the only way to deal with “mushikashika” drivers.
“…the operators of “mushikashika” are not just committing traffic violations only but other crimes…including abusing drugs, harassment of commuters especially women, theft, robberies…
The private taxis tend to flee and resist arrest whenever they see the police. To grant the application would be tantamount to legalizing the actions of these errant motorists as the police would be incapacitated to deal with them.”
Tagu upheld their challenge.
“While the application has been filed to protect commuters, one thing that boggles this court’s mind is why members of the 1st applicant (PAZ) have this high affinity of boarding illegal vehicles at undesignated points while there are conventional transport such as ZUPCO and registered taxis.
“I, therefore, agree…that the order being sought by the applicants, that there be a blanket ban on the use of spikes, tear gas…is unassailable. However, that is not to say that the police should do so because it is illegal, but circumstances may dictate that it be done.
“For these reasons, the application will fail as the applicants are approaching the court with dirty hands.”
The appeal against this ruling is yet to be heard.