Court Watch 12-2014

COURT WATCH 12/2014

[17th July 2014]

Record of Cases in the Constitutional Court

1:  Cases 1 to 10:  22nd May to 4th July 2013

The Constitutional Court’s Jurisdiction

The court has responsibility for deciding:

- constitutional cases that were lodged in the Supreme Court before 22nd May under the former Constitution but not fully argued before the court by that date

- constitutional cases filed with it from its inception on 22nd May 2013 onwards [whether as direct applications or by of appeal or reference from a lower court]

- challenges to Presidential election results, requests from the President or a Minister for advice on the constitutionality of Bills and statutory instruments, which are matters exclusively for the Constitutional Court.

Note:  Except in cases in which the Constitutional Court has exclusive jurisdiction, other courts may also rule on constitutional issues, but sometimes their orders will require confirmation by the Constitutional Court; for example, a High Court ruling that an Act of Parliament or a statutory instrument, or any conduct of the President or Parliament, was unconstitutional has no force unless confirmed by the Constitutional Court [Constitution, section 175].

Case Summaries

In this bulletin we begin an overview of all the cases that have come before the Constitutional Court for hearing from its inception on 22nd May 2013, when the new Constitution was published in the Gazette.  The cases are dealt with in chronological order from the first case heard on 23rd May 2013 onwards.  The number after the names of the parties indicates the court’s case file number – SC signifying a pre-22nd May 2013 case taken over from the Supreme Court, and CCZ the Constitutional Court’s own case number.  A short summary of each case is given.   Where a case of particular interest has been covered more fully in a previous Veritas bulletin, the reference is given.

Note on terminology: The term “N.O.”, which appears frequently following the name of an individual party, is an abbreviation of the Latin “nomine officio”, indicating that the individual named is cited in his or her  official, not personal, capacity; e.g., Robert Gabriel Mugabe N.O. means Mr Mugabe in his capacity as President.

Note on court orders and judgments available: Where Veritas is able to provide a soft copy of a written court order – the court’s decision ending the case [e.g., “The application is dismissed” or “The application is granted and it is declared that …”] and/or the court’s judgment [i.e., full written reasons for judgment explaining the court’s order], this is stated, and means that the document is available from Veritas either on its website or by requesting it by email – addresses are given at the end of this bulletin.  It is a matter for regret that judgments have not been provided by the court in most of the cases decided by the court in the period covered in this bulletin.  As a result the court is not building up an accessible body of precedents for the guidance of other courts, the legal profession, the Government and the general public [see Court Watch 12/2013 on the importance of written reasons for judgment].

Case Summaries

  1. 23rd May 2013: Douglas Muzanenhamo v The State. [SC 287/12]  Rights of HIV-positive persons in police and prison custody to receive ARV treatmentThis was the first case heard by the court, only a day after its coming into being on 22nd May.  Mr Muzanenhamo was one of 45 persons arrested in February 2011 at a meeting to view videos of the “Arab spring” and discuss its implications for Zimbabwe; they were later remanded on treason charges.  39 of them, including Mr Muzanenhamo, were released in March 2011.  While he was in detention, Mr Muzanenhamo was denied access to antiretroviral treatment and his health deteriorated as a result.  Mr Zhuwarara from Zimbabwe Lawyers for Human Rights, representing Mr Muzanenhamo, filed an application in the Constitutional Court on the grounds that denying a detained person access to antiretroviral treatment violates section 48(1) of the Constitution which protects the right to life.  The matter was heard on 23rd May 2013; Mr Zhuwarara argued that every individual who is HIV positive and is incarcerated by the state and notifies the authorities of his or her status has the right to access antiretroviral treatment as prescribed by a doctor.  After hearing arguments from both sides the court reserved judgment.  [Judgment awaited]
  2. 24th May 2013: Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe N.O, Morgan Richard Tsvangirai N.O, Arthur Guseni Oliver Mutambara, N.O, Welshman Ncube and the Attorney General. [SC 146/13, CCZ 18/13]  Election date case. [Ref: Court Watch 7/2013]  On 2nd May 2013, Mr Mawarire filed an application seeking an order directing the President to proclaim the elections to be held no later than 30th June 2013.  The basis of his application was that his right to the protection of the law and to have public officials obey the law [section 18 of the previous Constitution] had been violated by the President’s failure to proclaim the election date already.  The matter was set down to be heard on 24th May, the court’s second day of business.  Because by that date it had become impossible to hold elections by 30th June, Mr Mawarire amended his application to ask for the election to be held by 25th July.  After hearing the arguments from both sides, the court reserved judgment.  On 31st May judgment was handed down – the first decision of the new Constitutional Court.  Seven of the nine judges agreed that elections should take place no later than 31st July 2013.  Deputy Chief Justice Malaba and Justice Patel disagreed with the rest of the bench on the ground that the court could not act as if it were the executive and fix election dates.  [Judgment available]
  3. 26th June 2013: Mutumwa Dziva Mawere v The Registrar General, The Zimbabwe Electoral Commission, The President of Zimbabwe and the Attorney General. [CCZ 47/13]  Dual citizenship case.  Mr Mawere, a Zimbabwean citizen by birth and a South African citizen by registration,  approached the court seeking a declaration that the new Constitution automatically confirms his status as a citizen by birth without his having to go through a “restoration of citizenship” process.  On 26th June, the court, having heard arguments in the matter, issued an order declaring that Mr Mawere is a citizen of Zimbabwe in terms of section 36(1) of the Constitution and interdicting the Registrar General from demanding that Mr Mawere renounce his foreign-acquired citizenship before issuing him with a national identity document.  The Registrar General was also directed to issue Mr Mawere with a national registration document as soon as possible before the voter registration process being conducted by ZEC was completed.  [Judgment awaited]
  4. 26th June 2013: Tavengwa Bukaibenyu v Chairperson, Zimbabwe Electoral Commission, Registrar General of Voters, Ministers of Constitutional and Parliamentary Affairs and Justice and Legal Affairs. [SC 126/12]  Diaspora vote in harmonised elections[Ref: Court Watch 14/2013]  Mr Bukaibenyu, a registered voter in Mabvuku but living in South Africa, made an application to the court seeking, firstly, an order declaring unconstitutional sections of the Electoral Act that deny Zimbabweans in the Diaspora the right to vote and, secondly, an order allowing them to be granted the postal vote that diplomats and Government officials based in foreign countries enjoy.  On 26th June 2013, the court heard submissions in the case and dismissed the application.  [Judgment awaited]
  5. 28th June 2013: Gadzamoyo Dewah v The President, Ministers of Constitutional and Parliamentary Affairs and of Justice, ZEC Chairperson and the Prime Minister. [CCZ 39/13] Early nomination date challenged.  [See Court Watch 13/2013]  The President of the Good People’s Movement party made an application seeking an extension of the nomination date by two weeks.  The nomination date had been set for 28th June 2013.  Dr Dewah also challenged the constitutionality of the Political Parties (Finance) Act, arguing that small parties not party to the GPA did not have access to funding from foreign sources or the treasury.  The application was heard and dismissed on 28th June 2013.  [Judgment awaited]
  6. 4th July 2013: Zimbabwe Development Party v Minister of Justice and Legal Affairs, Minister of Constitutional and Parliamentary Affairs, the Chairperson of the Zimbabwe Electoral Commission and the Minister of Finance. [CCZ 33/13]  Absence of State funding for small political parties.  [Ref: Court Watch 13/2013]  This case challenged the constitutionality of section 3(3) of the Political Parties (Finance) Act in light of section 67(2) of the Constitution.  The applicant party argued that its exclusion from State funding [because it had failed to receive at least 5% of the total number of votes cast in the 2008 general election] infringed the constitutional right of every Zimbabwean to form, join and participate in the activities of a political party.  It sought an order directing the Minister of Finance to release funding to the party so that it could prepare for the election.  The case was heard and dismissed on 4th July 2013.  [Judgment awaited]

Note: As the following four cases, 7, 8, 9 and 10, all raised essentially the same issue, the Chief Justice convened a case management meeting with all the lawyers and directed that the cases be “consolidated” so that they could be dealt with at the same court hearing on 4th July.

  1. 4th July 2013: Patrick Anthony Chinamasa (in his capacity as Minister of Justice and Legal Affairs) v Jealousy Mbizvo Mawarire, Morgan Richard Tsvangirai, Welshman Ncube and 2 others. [CCZ 235/13]  Request for extension of the election deadline fixed in Mawarire case[Ref: Court Watches 8/2013, 12/2013]  Mr Chinamasa’s application for a two week extension of the election date deadline fixed by the court in the Mawarire case was strongly opposed by both Mr Tsvangirai and Professor Ncube.  In the papers filed Mr Chinamasa explained that the application was made by direction of the Extraordinary SADC Summit held in Maputo, although he had no complaints about the court’s decision that elections should be held by 31st July.  The application was dismissed at the end of the hearing.  [Judgment awaited]
  2. 4th July 2013: Nixon Nyikadzino v President of the Republic of Zimbabwe and 12 others. [CCZ 31/13 and 34/13]  Application for extension of the election date.  [Ref: Court Watch 12/2013]  The applicant argued that the date set by the court in the Mawarire case did not leave enough time for registered voters to complete all the processes required for elections to be held in a constitutional manner.  He also argued that holding the election by 31st July violated several constitutional rights, including freedom from violence [section 52 (a)], freedom of assembly and association [section 58] and the rights of persons with disabilities [section 83].  Mr Nyikadzino also argued that elections can only be held under an Act of Parliament which complied with the Constitution and that no such Act was in place.  The application was dismissed at the end of the hearing.  [Judgment awaited]
  3. 4th July 2013: Maria Phiri v The President and 5 others. [CCZ 28/13]  Another application for extension of the election date[Ref: Court Watch 12/2013]  The applicant sought an extension of the election date to allow persons formerly wrongfully classified as “aliens” but confirmed as citizens by the new Constitution time to acquire citizen ID cards to enable them to register as voters for the election.  The application was dismissed at the end of the hearing.  [Judgment awaited]
  4. 4th July 2013: Morgan Tsvangirai v The President and 7 others. [CCZ 37/13] Application challenging the constitutional validity of the Presidential Powers regulations and the election proclamation that followed.  [Ref: Court Watch 12/2013]  Mr Tsvangirai through his lawyers made an application asking the court to set aside the election proclamation and the Presidential Powers Regulations amending the Electoral Act.  Arguments in the case were heard by the court on 4th July.  At the end of the hearing the court dismissed the application and confirmed 31st July as the election date.  [Judgment awaited]

 

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