POWERS OF POLICE IN SEARCH AND SEIZURE OF ARTICLES

By Nyamukondiwa Fidelicy

The re-alignment of laws to the Constitution of Zimbabwe, Amendment 20 Act 2013 has

brought about significant changes in the Criminal Justice system. Ignorance of such re-alignment

of the laws can undoubtedly result in the defeat of the smooth running of the wheels of the proper

administration of justice. In some cases, it now invites criminal liability. This article will explore

the changes that have been inaugurated by the Criminal Procedure and Evidence Amendme nt

Act 2 of 2016 “ hereafter The Amendment” in regard to the Powers of the Police in the Searching

and Seizure of articles that constitute evidence or that would have been used in the commission

of offences

Issue of Search Warrants

Previously, a magistrate or a Justice of Peace (a police officer of the rank of Superintendent and

above) could issue a search warrant. Section 50(1) of the Criminal Procedure and Evidence Act

(2016) “hereafter The Act” now precludes police officers from issuing search warrants.

Searching and Seizure without a Warrant

Police officers who conduct searches without a warrant, or enter premises to interrogate suspects

and witnesses, are now mandated to disclose their identities to interested parties. Section 18 of

The Amendment is couched in the following way; “A police officer executing a search without a

warrant in the circumstances specified in subsection (1) (b) shall, upon demand of any person

whose rights in respect of any search or article seized under the warrant have been affected,
furnish that person with the particulars of his or her name, rank and number, and the reasons

for carrying out the search and seizure without warrant.” The provision is peremptory. The law

maker has gone a step further by criminalizing the failure to comply with the section. A failure to

comply will attract criminal liability and a penalty of payment of a fine not exceeding level four

or to imprisonment for a period not exceeding three months or to both such fine and such

imprisonment. A jurisprudential analysis of Section 18 connotes that a Police officer will only

commit an offence if and only if he fails to furnish particulars and reasons upon demand by the

interested party. A judicious police officer should however not wait for the concerned person to

demand for the furnishing of particulars and reason for the search and seizure of articles. A prudent

officer adequately introduces himself first and thereafter explain the reason for the search and

seizure

Issue of Full Receipt for Seized Articles

Police officers who seize articles from arrested persons or from premises they have searched are

now required to issue full receipts for the articles that they would have taken. Section 47 of The

Act defines a full receipt as “ …a receipt specifying the nature of the article, the name and

address of the person from whom it was seized and (if some other person is known to be the

owner thereof) the name and address of the owner thereof, the date of seizure and the place

of custody, and the name and signature of the seizing officer”

It has to be noted that where three or more articles are seized from the same person at the same

time, the full receipt may refer to a description of the articles in a list attached thereto. The list has

to be signed by the seizing officer and retained by the person from whom it was seized.
It is imperative to mention that a failure to issue a full receipt in terms of The Act will also attract

Criminal Liability. Put differently, the responsible police officer will have to appear before a

Magistrate to answer a criminal charge. If convicted, the member will be liable to a level four fine

or to imprisonment for a period not exceeding three months or both such fine and imprisonment.

Powers to Stop and Search Persons at Night

Prior to the Amendment, a police officer could search any person whom he finds at night carrying

or transporting any goods or articles of any description if such person fails to adequately account

for the possession of the goods or articles so being carried or transported. In terms of Section

52(3) of The Act, the powers of police officers to stop and search people at night are now restricted

so that police officers are allowed to search only persons who fail to satisfactorily account for the

possession of the goods or articles so being carried or transported and whom they reasonably

suspect to be carrying goods that would have been criminally procured or would be of a kind whose

possession is intrinsically unlawful.

The law has always provided that a police officer who conducts a stop and search may convey

such goods or articles and the person so carrying or transporting the same to any prison or police

station, and detain such person in custody. It follows that, if a person is detained in terms of this

section and if he is not released, he must be brought before a court as soon as possible and in any

event not later than forty-eight hours after the detention began whether or not the period ends on

Sunday or a public holiday. Upon being released from custody, the goods and articles that a person
would have been carrying or transporting shall be returned to him, unless they are seized and a full

receipt therefor is given to him in terms of Section 49 of The Act

The 2013 Constitution and the subsequent re-alignment of the Criminal Procedure and Evidence

Act contains many new provisions that enhance and protect the rights of persons. The legislation

strives to strike a balance between the rights of persons, on one hand, and on the other, the interests

of society in maintaining law and order. In the endeavour, it places constraints on police powers

of search and seizure. Police officers must be alert to the aforementioned changes to enhance the

proper administration of Justice

Fiat Justitia Ruat Caleum

Nyamukondiwa Fidelicy

nhanyams@yahoo,com

0773975244/0718975244