Unlawful arrest and detention in Zimbabwe

There is an increase in civil ligation for unlawful arrest and detention claims in Zimbabwe. It is important to highlight that an arrest or detention can either be unlawful or lawful.

Section 49(1)(b) of the Constitution of Zimbabwe Amendment (No 20), Act 2013

protects the right to liberty against arbitrary and unlawful arrest. In order for an arrest to be lawful, it has to be founded on a just cause.

Resultantly, the legality of an arrest is founded on the proper exercise of the discretion to arrest. Section 25 of the Criminal Procedure & Evidence Act [Chapter 9:07] authorises a peace officer to arrest, but such an arrest has to be based on the proper exercise of the discretion to arrest.

In deciding whether to arrest certain factors need to be considered such as:

1. (a) The possibility of escape
2. (b) The prevention of further crime; and
3. (c) The obstruction or interferences with police enquiries or with witnesses. Unlawful arrest and detention is a delict. One can sue for compensatory damages arising from an unlawful arrest or detention. It is a delict which is generally committed by police officers. In one case, where an employee was unjustifiably arrested and detained on allegations of theft at the instance of their employer, it was found that a delict had been committed. Therefore, the delict of unlawful arrest and detention can be brought against a person, that is an artificial person i.e. a company or against a natural person i.e. another individual.