ZIMBABWE – Financially-troubled Chitungwiza Municipality has come under fire for arresting and fining motorists for reportedly kidnapping traffic officers, a serious criminal offence that under normal circumstances is left for the courts of law.
Kidnapping, in terms of the Criminal Law (Codification and Reform) Act, may attract a prison term and legal experts say council was usurping the role of another arm of the State.
Motorists are also breathing fire over allegations that some overzealous municipal traffic officials in civilian attire were deliberately causing motorists to commit the offence of obstructing others by waving them down at undesignated points before arresting them.
In a move described by motorists as desperation for cash, some council officials operating under the joint venture parking company, Park Rite, are reportedly disguising as desperate transport seekers and entice the motorists to stop before slapping them with a $100 fine.
In mafia-style, they instruct the drivers to proceed to the municipality’s head office in Zengeza 4.
If a motorist refuses to go to the head office and drives his own way with the officer on board, council will charge him or her with kidnapping or attempted kidnapping, offences that attract a $200 fine in terms of the Park Rite fines schedule.
According to the fines schedule the offence is crafted as:
“Attempt to kidnap or cause to be kidnapped an authorised person in the exercise of his duties under these by-laws.”
Legal experts slammed the municipality saying kidnapping was a serious criminal offence which must only be investigated by the police and handed over to the criminal court, which has jurisdiction over such cases.
Prominent Harare lawyer and lawmaker Mr Jonathan Samukange said council was acting unconstitutionally.
“Council does not have jurisdiction over kidnapping. Only the courts of law and in most cases, the regional court, preside over such serious cases.
“Fining people for kidnapping is unconstitutional and if there are motorists out there who were fined, they have a right to contest the decision,” he said.
Mr Samukange added that even if council had the powers, circumstances of kidnapping by motorists did not constitute an offence at law.
“If one forcibly gets into my car and orders me to drive to where I do not want to go, I have the right to refuse.
“Kidnapping may arise if a motorist is the one who forces the traffic officer into his car and drives away.
“In the motorists’ case, it is vice versa and in fact the traffic officers should be charged for extorting the motorists,” said Mr Samukange.
Top lawyer Mr Wellington Pasipanodya, said if the by-laws allowed council to handle such a criminal case, then they have to be aligned with the constitution.
“Criminal cases like kidnapping are investigated by attested members of the Zimbabwe Republic Police, prosecuted by the National Prosecuting Authority and presided over by a competent court of law.
“Where such offences have been committed, council officials may effect a citizen’s arrest and hand over the case to the police.
“If they are allowed to impose fines on kidnapping suspects, what then stops them from fining someone for murdering a municipal traffic officer?” said Mr Pasipanodya.
Legal expert, Mr Fred Gijima, said councils have no jurisdiction over serious criminal cases like kidnapping.
“Kidnapping is a criminal offence and it can only be referred to a court of law. It cannot be handled by any civilian entity or municipalities,” he said.
Park Rite operations manager, Mr Obrien Rwafa, defended the charge of kidnapping saying resistance by some motorists would result in them committing the offence.
“If one is arrested and given a directive to drive to the holding compound where we keep vehicles that have violated traffic rules and for some reason you elect to go another destination, that is where the aspect of kidnapping comes from.
“We do have jurisdiction. We do what we have to do as council and also make police reports.
“We do both. There are council procedures where we impose a fine and also make a police report in terms of our by-laws,” said Mr Rwafa.
Mr Rwafa said waving down motorists in a desperate bid to fine them was not Park Rite’s policy and anyone doing it had no place in the parking company.
“I will not defend them because most of the times they are the ones on the ground. It could be true or untrue, but our position as council and Clyna is very simple. Entrapping someone into committing an offence, especially by way of pretending to be looking for transport, cannot be condoned.
“If that can be proven, we will throw labour laws out of the window and send the particular individual home.
“It is not our policy to stop and arrest vehicles, but to arrest those found committing offences,” he said.