Section 193 Of The Criminal Procedure And Evidence Act Declared Unconstitutional

The High Court of Zimbabwe on 7 October 2020 declared Section 193 of the Criminal Procedure and Evidence Act which deals with detention of persons who are Deaf or mute or both, unconstitutional to the extent that it violates the rights of accused persons.

In an application filed by Advocate Francisca Chinwavadzimba in August 2020, on behalf of the Legal Resources Foundation and the Deaf Zimbabwe Trust, the two organisations argued that section 193 of the Criminal Procedure and Evidence Act is unconstitutional. The section does not provide for a sign language interpreter therefore violating the rights of the Deaf and mute.

The High Court granted the order on the basis that Section 193 of the Criminal Procedure and Evidence Act does not provide reasonable accommodations for accused persons who are Deaf and mute in criminal proceedings. The section, in particular the provision of sign language interpreter thereby infringing their rights as enshrined in section 70, 69, 50, 49 and 56 of the Constitution.

In the absence of a sign language interpreter accused persons who are Deaf will not be informed of the charge promptly and will also be denied the right to have proceedings conducted in the language they understand.

Section 193 allows the Court to detain an accused who is deaf and/or mute without a trial in direct violation of the right to due process. In terms of the Constitution an accused person must be permitted to challenge the lawfulness of an arrest. The Constitution also provides that an accused person must be informed of their right to remain silent and that an accused person must be informed of the reason for being detained.

In a case where the accused person is Deaf and/or mute, these rights accorded to them would be rendered insignificant if the law does not make provision for a sign language interpreter.

In declaring section 193 as unconstitutional, the High Court suspended the declaration of unconstitutionality for six (6) months to allow the (Minister of Justice Legal and Parliamentary Affairs) to remove the unconstitutional clauses by introducing a clause which provides for a sign language interpreter. The Attorney General and the Prosecutor General were cited as the second and third respondents respectively.

Source: Legal Resources Foundation and Deaf Zimbabwe Trust

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