The Sunday Mail
It is a few years now since the Zimbabwe Republic Police began to insist on spot fines for minor traffic offences. A motorist alleged to have committed a specified minor traffic offence is now required to pay the fine on the spot.
If he does not have the money there — or if he refuses to pay — then he can be taken to the nearest police station where he is held until he pays the fine or appears in court within 48 hours.
Our Constitution directs that the police may not hold a person for more than 48 hours before bringing that person to a court of law.
The problem with spot fines is that police have a huge unfair advantage over motorists in that they can use the threat of detention and/or impounding the vehicle to get the motorist to pay.
In the greater number of the cases, there is no opportunity for the motorist to challenge the police to prove their allegations as no sane person will want to waste time arguing with a police officer over a US$20 fine.
Prior to the current system, the subsisting arrangement gave the infringing motorist the option to pay the fine within a certain period of time failing which he could be arrested and charged. That approach had several advantages but, admittedly, also had its challenges.
A notable advantage with the previous system was that if the offender did not have the money on his person, he had ample time to source the funds or confer with a lawyer on the propriety of the charge.
If need be, the motorist could challenge the police in a court of law by denying the charge and thereby asking the State to prove its case against him.
There was never a threat to throw the offending driver into police cells.
In my view, this was in tandem with the tenets of justice which demand that prior to conviction, the accused must be heard by an impartial court of law unless he freely and voluntarily admits guilt.
Our Constitution is also very clear on this aspect as it directs that no one may be punished without first being afforded a fair hearing.
Right now, the police are acting as the arrestor, prosecutor and judge. Surely, this cannot be allowed to continue.
As things stand, a motorist alleged to have infringed a certain road regulation is at the mercy of the police.
The main challenge with the old system was that it was always a very difficult task for the police to try and track down defaulters, particularly where the offending motorist supplied false contact details.
Also, during the hyperinflation days, by the time the offender paid the fine, the value was already long lost.
So in an effort to curb these and other challenges, the police migrated to the current spot fine regime.
But I pose the question again: Is this new course consistent with the law?
A perusal of the Criminal Procedure and Evidence Act, the rule book by which all criminal cases are conducted in our courts, does not refer to any such procedure.
This is strengthened by the remarks made by High Court judge Justice Francis Bere while opening the 2015 High Court Legal Year in Masvingo when he was reported saying spot fines were unlawful.
Although the learned judge’s remarks were made outside court, they are nevertheless persuasive.
What was most surprising was the police’s reaction to the said comments. Instead of taking time to reflect, and seeking ways to align their conduct with the law, the police reportedly took umbrage with the respected judge.
This was even though way back in 2012, another High Court judge, Justice Maphios Cheda with the concurrence of Justice Lawrence Kamocha, in the case of Zaine Babbage vs The State (HB157/12), ruled spot fines were unlawful.
In their own words, the learned judges said in Page 5 of the judgement: “. . . a police officer cannot and should not insist on a spot fine on the basis that he is not in possession of a ticket book which ticket book is a necessary administrative tool for executing his duties. A police officer’s failure to carry relevant stationery cannot be used to curb and/or infringe people’s rights.”
This is instructive.
The police reportedly justified their insistence on spot fines on the basis of alleged Cabinet authority.
This cannot be because according to law, Cabinet gives directives and orders via Statutory Instruments issued by the relevant minister.
As long as there in no actual law made by Parliament or a Statutory Instrument, there is no such authority.
From that standpoint, therefore, the spot fines are undoubtedly unlawful. If I am correct in coming to that conclusion, what then is the way forward?
From where I am sitting, there is only one way forward. It is to return to the previous system.
With the advent of modern technology brought about by the recent installation of toll gates on major roads throughout the country, and the electronic parking system in urban centres, it should now be all too easy to return to the “time to pay” approach.
Here is why.
Where a motorist is arrested for contravening a certain minor traffic rule, he should be given the option to pay the fine on the spot or within a certain number of days which may be seven or 14 days, or whatever number the lawmakers come up with.
If a person defaults or supplies false contact details to the police, in my view, it is now all too easy to track him down.
The question of following up on offenders should not even arise because the electronic parking system should be able to pick the person’s motor vehicle when he parks in the CBD and thereby enabling the vehicle to be disabled from movement by clamping.
This facilitates the easy arrest of the offender although I must admit that there could be challenges where the vehicle was being driven by someone else when the offence was committed.
Such cases should, however, be few and far between.
Further, passage through a toll gate would also be impossible if it is programmed in such a way as to identify and pick out road traffic ticket defaulters.
The whole road traffic system should be harmonised in such a way that all vehicular data resides in one computer system to enable easy and efficient management.
It should, thereafter, be easy to distribute the fines collected by the various enforcers to wherever they belong.
As it is, it is not clear if the fines collected by the police are being channelled to the Treasury or if the police are retaining them for their own purposes.
The current spot fine regime should, therefore, be discontinued immediately as it appears to lack the requisite legal authority.
There is no justification at all why the police should continue to insist on the spot fines, particularly in light of how courts deal with fines at the end of a trial.
In a criminal trial, an accused person who has been convicted and is, thereafter, ordered to pay a fine, is given time to pay.
Our courts do not insist on the fine being paid on the spot.
If the deadline by which the fine should have been paid expires before the whole amount is paid in full, the person can apply for an extension.
So if the courts are so flexible, why should the police be so rigid? After all, are the courts and the police not supposed to be two hands that clap together?
The way the police are proceeding breeds corruption.
When it comes to foreign drivers I think these should be treated differently because once they are out of the country, there will be no way of recovering the fine.
Even for locals, if the driver does not have his identity particulars, which itself is an offence, they should either pay the fine “on the spot” or held according to the law.
What I perceive as the real motivation behind the police insisting on the present way of dealing is to raise money.
Yet the purpose of law and the subsequent fine is to deter citizens from committing offences.
The only way out then is to substantially increase the fines for the so called minor offences so that people then know that if your motor vehicle does not have as little a thing as a reflector, you will pay an arm and a leg for such an offence. That way, we will have a country of law abiding citizens.
Right now people do not really care if they pay a fine because the amounts are so insignificant.
The police appear to be taking pleasure in collecting the money rather than seeing motorists in compliance with the law.
Further, what is worrying even more is that the police are not concerned with habitual traffic offenders as long as they continue to pay the fines.
This is unlike what obtains in other jurisdictions where they use the points system to profile traffic offenders whose consequences range from the suspension or banning of the offender from driving in the event the same driver accumulates a stated number of points.
Tichawana Nyahuma is a legal practitioner and he writes in his personal capacity. Feedback: [email protected]
