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Qhubani Moyo
JUSTICE Francis Bere stirred a hornet’s nest when he pronounced that spot fines by the Zimbabwe Republic Police were illegal. The pronouncement was met with jubilation by the motoring public given the amount of abuse they have faced at the hands of the law enforcement agencies whenever they failed to pay the spot fines.

The police themselves, through Chief Superintendent Paul Nyathi, came out guns blazing and fired from all cylinders telling the country and the world that Justice Bere was just expressing his personal opinion and therefore the pronouncement by the learned judge was not legally binding on the police.

The police spokesman urged the motoring public to continue cooperating with the police force of Zimbabwe and pay their spot fines like they have always done. His appeal on the need for continued cooperation by the citizenry suggested that there was a possibility of defiance of the law by the citizens on the strength of a “wrong legal” pronouncement by a sworn judge of the High Court of Zimbabwe. Yet in reality and if the truth be told , the motoring public have not had any option but to submit grudgingly to the police demands on spot fines because on most occasions the police are not willing to cooperate or listen to the motoring public’s problems and reasons for inability to make spot fine payments.

The police have made it a hobby, habit and priority to ensure that spot fine payments are at the core of their operations than law enforcement. This inevitably has created a wrong picture about the force as the citizenry view them more as working to fulfil their own interests than citizens’ protection. That image and lack of confidence in the country’s police force is not healthy and defies the very heart and foundations of the roles and responsibilities of the police force.

It is clearly an issue that needs urgent attention because issues of image and confidence are fundamental for public institutions especially those tasked with enforcement of law and order. A police force which is viewed in the public as more designed to fleece the public than protect it is not good at all. While it is reasonably understood that the pronouncements by Justice Bere were made while opening the High Court and not as a court judgment and therefore not a legal position, it is important to note that there has been pronouncements made on the issue before and the police have continuously and knowingly violated the High Court judgment.

Given the rush statement in the media and acres of space bought in the Press to “clarify” the position, I have no doubt that the police actually know and have in their files the judgment made in 2012 by Justice Maphios Cheda in the case between Bulawayo businessman Zane Babbage and the State.

In his ruling Justice Cheda ruled that the police cannot legally demand a spot fine. He ruled that a motorist should be given a ticket and reasonable time within which to pay the fine in accordance with their regulations unless if the offender elects to pay the fine on the spot.

The learned Judge did, however, indicate that the police were empowered to use their powers as they deemed fit depending on whether the motorist is a foreigner or if he or she had no acceptable identification which would in turn make it difficult for him to be traced in the event of defaulting.

In his judgment he went further to state that “the police can’t and should not insist on a spot fine on the basis that he/she is not in possession of a ticket book which is a necessary administrative tool for executing his duties”. The factual reality is that the police did not challenge this ruling and therefore have been wrongfully forcing the motoring public to pay spot fines.

It is therefore suspicious that the police want us to believe that Justice Bere is expressing a personal opinion and thus tantamount to interfering with work of the police when there is a judgment on the matter. The attempt to provide an excuse saying the matter was deliberated in Parliament and Cabinet approved the justification by the Ministry of Home Affairs is ridiculous given that there are no known statutory instruments to support that position.

Cabinet has deliberated on so many things and gets justifications from various ministries but in the absence of supporting statutory instruments for enforcement, that remains nothing but just deliberations. The correct position is that the collection of fines from the motoring public should be in terms of the Road Traffic Act and the Criminal Procedure and Evidence Act which in its current form insists that the motorist should be given seven days to pay a fine at a police station.

However, in a clear case of dereliction of duty and abuse of power and unlawful conduct, the police have been on a spree in which, if a motorist fails to pay, they confiscate your licence, car keys and detain you at the roadside until you are subdued to admit to a payment of a fine to avoid unlawful detention or sometimes smash your windscreen. This is without doubt wrong and unprofessional policing.

This is not the first time that the police have been in the spotlight regarding the issue of spot fines. Sometime last year they went on an all out offensive against the statements by the Commissioner General of Zimra Gershom Pasi in Parliament that that they are collecting a huge figure of about $3,7 million per month from roadblocks and that the money was susceptible to abuse in the hands of law enforcement agents. The police claimed they never exceeded $1 million dollars in collections every month but up to now despite their claim that the money is well accounted for and banked at a local bank, there has been no public declaration on how much exactly they collect.

Rumour has it that each police station is given a target of how much to collect a day, a very unfortunate situation for an agency whose role is law enforcement and not revenue collection. While the circumstance in which the police were authorised to retain some of their collections was to assist in their operations, they need not abuse that privilege to abdicate their roles and duties of law enforcement. They also need not abuse that privilege and use their powers to extort the motoring public who expect their protection.

This could be a time for reflection and review of the police in line with the new constitution and new national priorities. If one of our key priorities is to establish strong national institutions that are able to effectively deliver services to the public it could be time to review the old policies like the one allowing some government agencies to retain a portion of what they collect.

There could be a need to ensure that all the collections are deposited with the necessary revenue collection authorities and no government department or agency should be allowed to retain collections. The disbursement should be done in a proper manner in line with the constitution’s provisions on management of public finances. To allow some government department to collect and retain some money for their services will not assist build national institutions that are strong. It only assists in exacerbating selfish approaches to execution of duties in a manner that does not assist government efforts of economic growth and service delivery.

What must be understood is that government should get public confidence from the way it runs the affairs of the country and one way of doing it is to be seen to be doing things according to the law. It is thus tantamount to shooting oneself in the mouth for the government to talk about a new way of doing things in a productive way yet at the same time allow for key national institutions like the police to do things outside the law.

The new order of doing things in line with the public administration provisions of Zim-Asset is to ensure that whatever is done is done in a manner that ensures that government is accountable to the citizenry. There is no way the government will have the respect of the citizenry and their confidence if it allows the law enforcement agencies to willy-nilly break the law like they have been doing since the Justice Cheda judgment in 2012.

There is a need to return to the basics and respect the institutions we created for ourselves. If for any reason there is a strong feeling in the government or in the police that the pay later fine system will cripple their operations they know what legal position to follow. They cannot just do things outside the law; they have to ensure that the necessary legal instruments are in place for enforcement of such actions.

Furthermore, given the government’ desire to ensure efficient public administration and accountability by every government department, the police have to make do with what is available and conform to the law in terms of revenue collection and also follow normal channels in requesting disbursement from the treasury like all other government departments.

This is not a banana republic and the police cannot treat the country as such by defying the law every day for the past three years and when the judges point out to them where they are behaving unlawfully they respond like bullies. In as far as they have the responsibilities to enforce the laws, the police should also understand and respect that the judges are there to interpret the laws. And when judges do as Justice Bere has done the police should be humble enough to accept the correction and make an “admission of guilt”.

l Qhubani Moyo is a policy and political analyst from Bulawayo East Constituency. He is contactable on [email protected]