Applicant's Founding Affidavit Dolosi v Minister of Justice & AG of Zimbabwe

EMMANUEL DOLOSI

vs

MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS

THE ATTORNEY-GENERAL

 

APPLICANT’S FOUNDING AFFIDAVIT

I, EMMANUEL DOLOSI do hereby make oath and state that:-

I am the Applicant herein.  The facts I depose hereto are fully within my knowledge and to the best of my belief true and correct.  Where I make averments of law, I do so on the basis of advice from counsel which advice I fully accept.  My address for the purpose of this action is care of my legal practitioners of record Tendai Biti Law from 28 Rowland Square, Milton Park, Harare.

THE ACTORS

I was born on the 8th of April 1969.  At the present moment, I am a death row prisoner, incarcerated at Chikurubi Maximum Prison.  My Prison Number is 661/14. 

The First Respondent, the Minister of Justice, Legal & Parliamentary Affairs, is a Minister duly appointed by the President in terms of the Constitution of Zimbabwe.    He is the Minister responsible for the Administration of the Prisons Act [Chapter 7:11] and it is in this capacity that he is cited. His address for service is 6th Floor, Block A, New Government Complex, Central Avenue, Harare.

The Second Respondent is the Attorney General of Zimbabwe whose office is established in terms of Section 114 of the Constitution of Zimbabwe.  As the Attorney General, he has a direct interest in this matter and he is cited as such for this reason.  His address for service is care of 4th Floor, Block A, New Government Complex, Central Avenue, Harare.

BACKGROUND

In September of 2010, I was arrested on charges of murder.  The brief facts were that on the 2nd of July 2010 at Gletwin Farm, Chishawasha, Highlands, myself and four other accomplices namely Kudzai Madziro, Leroy Muteera and Ronald Roorai Sambo unlawfully and intentionally caused the death of one Edson Manhembe by shooting him three times on his chest, cheeks and stomach with a firearm thereby causing injuries from which the said Edson Manhembe died.   

I need to confess to this Honourable Court that whilst I was part of the group of people involved at Gletwin Farm, I did not shoot the aforesaid Edson Manhembe nor was I aware that one my co-accused had a gun and intended to use the gun.    

My matter was heard before Justice Mwayera in the High Court of Zimbabwe and I was represented pro deo by Monica Machaka of Mupame and Associates. 

On the 30th of June 2014, I was convicted and sentenced to murder by the High Court of Zimbabwe.

Since then, I have been on death row awaiting execution at Chikurubi Maximum Prison.  I confirm that I am still awaiting for my appeal to be heard against the judgment of Justice Mwayera in CRB 115/11.  As I wait my appeal, I restate that I am a death row prisoner awaiting execution at Chikurubi Maximum Prison. 

For the sack of completion, I need to bring to this court’s attention that I am a married man with four children but one is deceased. 

THE CAUSE OF ACTION

My cause of action in this matter is simple.  The new Constitution of Zimbabwe, was approved in a referendum on the 15th of March 2013. 

The President of the Republic of Zimbabwe then signed the same into law on the 22nd of May 2013.  However, the full document only became law after the general election of the 31st of July 2013 on the 1st of August 2013. 

Suffice to state that the Bill of Rights, in the Constitution was one of the chapters in the constitution that immediately became law after the Constitution was signed by the President on 22nd of May 2013.

Section 48 of the Constitution of Zimbabwe provides a right to life.  Section 48 (1) and (2) reads as follows:-

It is my respectful contention that the law envisaged in Section 48 (2), which is the law that may permit the death penalty to be imposed, has not yet been passed by Parliament. 

More importantly, that law did not exist at the time that Justice Mwayera convicted me and sentenced me on the 3rd of July 2014 under CRB No. 115/11 in the High Court of Harare.

Because that law has not yet been enacted, it is my respectful contention that at the present moment in Zimbabwe, there is no law that provides for capital punishment and therefore sentencing me to death, as was done by Justice Mwayera was wrong.

That being so, it is my respectful contention that, my right to life, was infringed by the High Court of Zimbabwe which sentenced me to the penalty of death when, the law envisaged in Section 48 of the Constitution of Zimbabwe has not been passed. 

Put in simple terms, until the law envisaged in Section 48 (2) of the Constitution of Zimbabwe is enacted by Parliament, no one can be executed in Zimbabwe. 

The Court in convicting me did so on the basis of Section 47 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] (hereinafter referred to as the Code.).  That section reads as follows:-

Section 47

  1. Any person who causes the death or another person –
  1. Intending to kill the other person; or
  2. Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.
  1. Subject to Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless –
  1. The convicted person is under the age of eighteen years at the time of the commission of the crime; or
  2. The court is of the opinion that there are extenuating circumstances; in which event the convicted person shall be liable to imprisonment for life or any shorter period.
  1. A person convicted of attempted murder or of incitement or conspiracy to commit murder shall be liable to be sentenced to death or to imprisonment for life or any shorter period.”

Section 47 of the Code is clearly inconsistent with the provisions of Section 48 (2) of the Constitution of ZimbabweSection 48 (2) of the Constitution of Zimbabwe envisages and allows a law, that will only permit death penalty committed in aggravated circumstances and not against women amongst other things.  Clearly Section 47 of the Code cannot be reconciled to the law envisaged in Section 48 (2) of the Constitution of Zimbabwe.

Equally, Section 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], which also allows death penalty in Zimbabwe is not consistent with Section 48 (2) of the Constitution of Zimbabwe.  Section 337 and Section 338 of the Criminal Procedure and Evidence Act read as follows:-

 

          “Section 337: Sentence of death for murder

                   Subject to section three hundred and thirty-eight, the High Court –

  1. Shall pass sentence of death upon an offender convicted by it of murder:

Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the offender is a woman convicted of the murder of her newly-born child, the court may impose –

  1. a sentence of imprisonment for life; or
  2. any sentence other than the death sentence or imprisonment for life, if the court considers such a sentence appropriate in all the circumstances of the case.
  1. May pass sentence of death upon an offender convicted of treason.

 

                   Section 338 then reads as follows:-

 

Persons upon whom death sentence may not be passed

The High Court shall not pass sentence of death upon an offender who –

  1. Is a pregnant woman; or
  2. Is over the age of seventy years; or
  3. At the time of the offence, was under the age of eighteen years”

Part IV of the 6th Schedule of the Zimbabwean Constitution provides for Savings and Transitional Provisions.  Section 10 of this Schedule reads as follows:-

“Subject to this Constitution, all existing laws continue in force but must be construed in conformity with this constitution.”

Clearly, neither Section 47 of the Code nor Section 337 and 338, of the Criminal Procedure and Evidence Act, are in conformity with the Constitution in particular with Section 48 of the Constitution of Zimbabwe.

The instant application is thus a simple one.  It is one to declare that the sentence imposed upon me of death in July 2014 was unlawful and unconstitutional.  Section 47 of the Code in respect of which the Court acted upon, is not in conformity with the new Constitution. 

Under the circumstances I thus pray for an order in terms of the draft.

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