HARARE – The High Court has referred a case in which opposition activist Netsai Marova is seeking ZWL5 million in damages from the police, following the leak of sensitive and confidential nude photographs, to the Constitutional Court (ConCourt). The case raises critical questions about the constitutionality of the Police Act and the protection of citizens’ rights.
The photographs in question were taken at a local hospital as part of evidence gathering after Marova, along with Citizens Coalition for Change legislator Joanah Mamombe and councillor Cecilia Chimbiri, were allegedly abducted and tortured by suspected State security agents in 2020, before being dumped in Muchapondwa village in Bindura.
In her lawsuit, Marova, who is currently in exile, has cited Chief Superintendent Evelyn Phillip, Detective Chief Inspector Morgan Chafa, Commissioner Priscilla Makotose, ZRP Commissioner General, and the Home Affairs and Cultural Heritage minister as defendants. She argues that the leaking of the photographs was a gross violation of her dignity and privacy.
High Court judge Justice Siyabona Musithu has referred the matter to the Constitutional Court in terms of the court rules, paving the way for a constitutional challenge to the Police Act.
According to court papers, Marova instituted a summons claim on March 4, 2021, seeking ZWL$5 000 000 in general damages for what she describes as an unwarranted and malicious affront to her dignity. This claim stems from the circulation of the sensitive and confidential photographs of her naked body, which were initially captured as part of the police investigation into her alleged abduction and torture.
Marova is also seeking interest on the claimed amount at the prescribed rate from the date of issue of summons to the date of full payment, including the costs of the suit.
The events leading to the lawsuit date back to May 13, 2020, when Marova was allegedly abducted by unknown individuals who subjected her to inhuman and degrading treatment, including sexual assault. As a result of the torture, she was hospitalised at a hospital in Waterfalls, Harare, and subsequently reported the matter to the police.
On May 15, 2020, Chief Superintendent Evelyn Phillip, accompanied by Dr Nyamukure, visited Marova in the hospital ward where she was receiving treatment. Phillip identified herself as a member of the police forensic department and proceeded to photograph Marova’s nude body as part of evidence gathering. She also captured pictures of Marova’s colleagues, Chimbiri and Mamombe, who were also hospitalised at the same institution.
Marova alleges that Phillip requested her to remove her clothing and expose various parts of her body, with the understanding that the photographs were strictly for investigative purposes. However, on May 18, 2020, she became aware that the photographs, taken in strict confidence, were circulating on several social media platforms.
Marova contends that the circulation of the sensitive pictures was a direct result of Phillip’s actions, who was granted access to capture them. She argues that the unlawful circulation of photographs of her naked body was an insult that caused her great pain, made without reasonable grounds, and therefore negligent, malicious, and unlawful.
Marova further asserts that Phillip, who unlawfully released the sensitive photographs, was acting in the course and scope of her employment under the control or instruction of the Commissioner-General and the minister, making them vicariously liable for their employee’s actions.
The damages claimed are broken down as contumelia (ZWL2 000 000) and injuria (ZWL3 000 000), with interest on the above sum.
The defendants, however, entered an appearance to defend, arguing that the claim had been prescribed as Marova served them summonses after the stipulated period of eight months, as provided for in the Police Act. They sought the dismissal of Marova’s claim with costs.
In her response to the special plea, Marova denied that her claim had expired, contending that section 70 of the Police Act is unconstitutional and therefore of no force or effect. She further argued that her claim had not expired due to a supervening impossibility based on the COVID-19 pandemic, which prevented her from filing her summons within the period prescribed in section 70 of the Police Act.
Marova argued that there was no constitutional basis for the short prescription period when many other arms of the Executive were all susceptible to the three-year prescription period.
Justice Musithu stated that the court was satisfied that the request to refer the matter to the Constitutional Court was not frivolous or vexatious, as the constitutional question that arose for determination was critical to the resolution of the plea in bar pending before the court.
“Resultantly, it is ordered that under s175(4) of the Constitution of Zimbabwe, the question of the constitutionality of s 70 of the Police Act [Chapter 11:10] is hereby referred to the Constitutional Court for determination,” Justice Musithu ruled.
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