The photos were
captured at a local hospital as part of evidence gathering.
Marova, who was
allegedly abducted by suspected State security agents in 2020 together with
Citizens Coalition for Change legislator Joanah Mamombe and councillor Cecilia
Chimbiri, was allegedly tortured before being dumped in Muchapondwa village in
Bindura.
In her lawsuit,
Marova, who is in exile, cited Chief Superintendent Evelyn Phillip, Detective
Chief Inspector Morgan Chafa, Commissioner Priscilla Makotose, ZRP Commissioner
General and the Home Affairs and Cultural Heritage minister.
High Court
judge Justice Siyabona Musithu referred the matter to the Constitutional Court
in terms of the court rules.
According to
court papers, on March 4, 2021, Marova instituted a summons claim against the
defendants jointly and severally, one paying the others to be absolved, for
ZWL$5 000 000 being general damages for unwarranted and malicious affront to
her dignity.
This emanated
from the circulation of sensitive and confidential photographs of her naked
body that had been captured as part of evidence gathering.
Marova also
sought interest on the amount claimed at the prescribed rate from the date of
issue of summons to the date of full payment, including costs of suit.
On May 13,
2020, Marova was allegedly abducted by unknown persons, who subjected her to
inhuman and degrading treatment, including sexual assault.
As a result of
the torture, Marova was hospitalised at a hospital in Waterfalls, Harare. She
reported the matter to the police.
On May 15,
2020, Phillip, in the company of Dr Nyamukure, went to the hospital ward where
Marova was receiving treatment.
Phillip
identified herself as a member of the police forensic department and
photographed 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.
Phillip
reportedly requested Marova to remove her clothing and expose various parts of
her body.
Marova argues
that she understood that the photographs were strictly for investigative
purposes.
She averred
that on May 18, 2020, she became aware that the photographs that were captured
in strict confidence and for investigative purposes were circulating on several
social media platforms.
Marova
indicated that the circulation of the sensitive pictures on various social
media platforms was a result of Philip’s actions, who was granted access to
capture them.
She argued that
the unlawful circulation of photographs of her naked body was an insult that
caused her great pain, submitting that it was made without reasonable grounds
and, therefore, negligent, malicious and unlawful.
Marova said
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.
She also
submitted that the Commissioner-General and the minister were vicariously
liable for their employee’s actions.
The damages
claimed were broken down as contumelia (ZWL2 000 000, injuria (ZWL3 000 000)
and interest on the above sum.
However, the
defendants entered an appearance to defend, saying the claim had been
prescribed after she served them
summonses after the stipulated period of eight months as provided for in
the Police Act.
The defendants
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.
Marova further
denied that her claim had expired owing 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.
She 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
said 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.” Newsday
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