High court hands down written judgement in sweeping exercise case.

Today, the 8th November, 2022 the High Court has handed down its written judgment finding indiscriminate police sweeping exercises unlawful and contrary to sections 39, 19, 18 and 29 of the Constitution.

This is a really important development for the African continent for two reasons: Firstly, police sweeping exercises are a handy tool, used by States across Africa, and indeed in many parts of the world, to carry out indiscriminate mass arrests of both ordinary citizens protesting their rights, and of people carrying out life sustaining activities in public spaces: homeless people, street children, sex workers and informal traders. The catch-all colonial-era offence used is that of being a rogue and vagabond, or alternatively being idle and disorderly. Secondly, overturning discriminatory laws is important, but as a Campaign, we have long recognized that would not be enough, they are easily replaced with others. What we needed to do in parallel was to directly challenge police practice in law. The case was supported by the Centre for Human Rights Education, Advice and Assistance (CHREAA) in partnership with the Southern Africa Litigation Centre (SALC). 

Specifically the High Court:

Held that indiscriminate sweeping exercises and or arrests are unlawful and contrary to sections 39, 19, 18 and 29 of the Constitution;

Held that indiscriminate sweeping exercises and arrests are contrary to the police’s duty to protect human rights under sections 15(1) and 153(1) of the Constitution;

Compelled the police to develop proper guidelines for sweeping exercises which ensure full protection of human rights;

Noted that failure by the police to promptly inform arrestees of the charges against them at the time of arrest and detention is unlawful and contrary to section 42(1)(a) of the Constitution;

Noted that coercing arrestees at the police station to plead guilty, and threatening them with imprisonment if they fail to do so is unconstitutional and unlawful and contrary to section 42(2)(c) of the Constitution.

Ordered that the Executive through the Ministry of Justice (the Attorney General, Director of Public Prosecutions and Chief Legislative Counsel), the Ministry of Home Affairs, the Inspector General and the Legislature should within 24 months, effectively review section 184 of the Penal Code and effectively amend its provisions to the rule of law, the same law that empowers them.

Get the full judgement in our downloads section.