THE arrest and placement on remand of Prophetic Healing and Deliverance Ministries founder and self-proclaimed prophet Walter Magaya on rape and fraud allegations has reignited debate on constitutional rights and how the courts must respond when those rights are breached.
Magaya was detained in police custody for more than 48 hours, a fact admitted by the State through prosecutor Clemence Chimbari when the issue was raised before Magistrate Marehwanazvo Gofa by Magaya’s lawyers.
For clarity, Section 50 of the Constitution outlines the rights of arrested and detained persons. The core of Magaya’s legal challenge was the violation of Section 50(2), which provides: “who is not released must be brought before a court as soon as possible and in any event not later than 48 hours after the arrest took place or detention began, as the case may be, whether or not the period ends on a Sunday or public holiday”.
This provision was not crafted in a vacuum.
It is rooted in Zimbabwe’s political history, when police routinely arrested and detained government critics without bringing them before the courts.
During the late former president Robert Mugabe era, bail applications were treated with urgency and granted as a matter of course.
Today, such applications can drag on for a week or more, a worrying regression.
One need only look at Dube v Officer Commanding District Nkayi and Ors (HC 1186 of 2010) [2010] ZWBHC 125, where Joram Dube, a member of the then MDC, was detained for 10 days before being released without ever appearing in court.
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Police claimed they were still investigating, an excuse that drew sharp rebuke from the courts.
Justice Nicholas Mathonsi, sitting in the Bulawayo High Court, remarked:
“That the celebrated and time-honoured principle of our criminal justice system that an accused person is innocent until proven guilty is still part of our law is beyond doubt.
“So is the principle that the police should investigate the alleged commission of a crime and formulate a reasonable suspicion that an accused person has committed an offence before effecting an arrest.
“These legal and social mores have been with us since time immemorial. For a senior police officer commanding an entire district to swear that a suspect was arrested only for a crime docket to be opened later and for investigations to commence when the suspect was already languishing in custody is disturbing to say the least.
“It means that at the time of the arrest, the arresting detail could not countenance any reasonable suspicion that the suspect had committed an offence,” he added.
It was to curb such abuses that legislators introduced Section 50 as a safeguard against the excesses of the State, particularly the police, with the courts expected to serve as the last line of defence for the accused.
To remove any ambiguity, Section 50(3) prescribes a clear remedy for violating the 48-hour rule: “Any person who is not brought to court within the 48-hour period referred to in subsection (2) must be released immediately, unless their detention has earlier been extended by a competent court”.
The wording “must be released” is pre-emptory — it leaves no room for discretion. Once that right is violated, the arrest becomes unlawful. Courts, therefore, must not reward illegality by placing such an accused on remand.
This is not untested legal ground. In State v Madondo & Anor (B 394 of 2015) [2015] ZWHHC 512, two accused persons — Panganai Davison Madondo and Marvelous Calvate — were detained beyond 48 hours. When the magistrate refused to release them, claiming to lack jurisdiction, the High Court had strong words: “Judicial Officers, like the magistrates, should familiarise themselves with the provisions of the Constitution in order to protect the rights of arrested and detained persons who in most cases are first brought before them.
“The Constitution is the supreme law and should be complied with. I am surprised that the magistrate before whom the appellants were brought at Mbare was at pains to find ways not to apply the clear and unambiguous provisions of the Constitution.
“One of the important duties of a judicial officer is to apply the law without fear or favour. The administration of justice is put into disrepute if judicial officers dive and duck to avoid their responsibilities”.
Justice Garainesu Mawadze went further: “I am amazed that the magistrate reasoned that only the High Court has jurisdiction to deal with the over-detention of the appellants. The magistrate for some strange reason made reference to Section 50 (7) of the Constitution, which clearly is irrelevant to the circumstances of the appellants.
“The remedy for breaching Section 50 (2) of the Constitution is provided for in Section 50 (3) of the same Constitution, which is to release the detained person immediately in the absence of an extension of such a detention by a competent court. The reason for that is clear, as such continued detention is illegal as it offends Section 50 (8) of the Constitution.
“It is clear from the facts of this case that the appellants were over-detained in excess of 48 hours without due authority of a competent court.
“The magistrate before whom the appellants appeared cannot and should not have condoned that illegality.
“It was incumbent upon the magistrate, in the face of such an illegality, to immediately release the appellants as provided for in Section 50 (3) of the Constitution. The magistrate has jurisdiction to act in that manner”.
An arrest may be lawful in principle but become unlawful in practice if the police disregard constitutional and statutory protections.
Sections 50 and 70 of the Constitution, read with Sections 25 and 32 of the Criminal Procedure and Evidence Act, require that an arrested person be informed promptly of the reasons for arrest, advised of their right to remain silent, and allowed to consult a lawyer of their choice.
Even where there is reasonable suspicion, the police must follow the rules, document the reasons, read the rights, avoid unnecessary force and bring the accused before a court without delay.
If they fail to do so, the arrest collapses in law and the accused must be released unconditionally.
The Magaya case is a stark reminder that constitutional rights are not decorative words in a statute, they are binding guarantees.
The failure to observe the 48-hour rule not only erodes the integrity of the justice system but also entrenches a culture of impunity among law enforcement agencies.
Courts must apply the Constitution as it is written. Upholding the rule of law is not optional; it is the cornerstone of democracy.
By insisting that the State respects its own laws, the judiciary reinforces public confidence and ensures that no one, however powerful or unpopular, is denied due process.
Additional research by Ngonidzashe Walter Karasambudzi.
- Both Mhlanga and Karasambudzi are law students at the University of Zimbabwe.
