AFFIDAVIT OF MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS IN TERMS OF SECTION 24(5) OF THE FORMER CONSTITUTION OF ZIMBABWE
I, the undersigned, EMMERSON DAMBUDZO MNANGAGWA, do hereby make oath and say that:-
1. I am the Minister of Justice, Legal and Parliamentary Affairs, and I depose to this affidavit in terms of section 24(5) of the former Constitution of Zimbabwe pursuant to a rule nisi issued by this honourable court on 12th June, 2014 in a judgment in the matter of Nevanji Madanhire & Nqoba Matshazi v Attorney General CCZ 2/14.
2. I wish to advise this honourable court that I have no cause to show why section 96 of the Criminal Low (Codification and Reform) Act [Cap. 9:23] ('' Criminal Code") should not be declared to be in contravention of section 20( 1) of the former Constitution. As such, this honourable court may proceed to finalise the above matter in any way that it deems fit.
3. I have, however, noticed that the matter relates only to a provision of the former Constitution, and that at pages 16 and 17 of its cyclostyled judgment in the above matter, this honourable court expressly pointed out that the issue of the constitutionality of the said section 96 of the Criminal Code in terms of the provisions of the current Constitution had not been considered. Indeed, the judgment went on to point out that the said section 96 may very well be intra vires the current Constitution because of certain provisions in it.
4. The judgment also mode it clear that the constitutionality of section 96 of the Criminal Code vis-a-vis the current Constitution will only be tested once on appropriate case is brought before this honourable court for determination. it is therefore my respectful submission that until such a case is brought, this honourable court is not under any obligation to strike down the provisions of section 96 of the Criminal Code. The provisions of section 96 should therefore continue to exist under the Criminal Code.