Applicants' Heads of Arguments in Ndlovu & Another v Minister of Justice & Another

In the matter between:-

FARAI LAWRENCE NDLOVU

WISDOM GOCHERA

vs

MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS

THE ATTORNEY-GENERAL



APPLICANTS’ HEADS OF ARGUMENT

General

The Applicants, regrettably, are convicted murderous.  The First Applicant was convicted by Justice Cheda in the High Court of Bulawayo on the 24th of May 2012.  The Supreme Court dealt with his automatic appeal and dismissed the same on the 8th of May 2014.  The Supreme Court’s judgment is SC 36/14. The Second Respondent was convicted of murder by Justice Paradza on the 27th of July 2002.  His automatic appeal was dismissed by the Chief Justice, with the concurrence of the Deputy Chief Justice and Gwaunza JA on the 6th of September 2005 in Judgment Number SC 33/05. The Applicants’ case is very simple.  It is that the new Constitution of Zimbabwe provides them with a right to life in terms of Section 48(1) of the Constitution.  Therefore, they contend that they cannot be executed now, for to do so infringes their right to life under Section 48 of the Constitution of Zimbabwe.

They further contend that the old law in respect of which they were convicted does not apply to them as it is not in conformity with the new Constitution of Zimbabwe.  Further, they contend that there cannot presently be any execution of any prisoner or any sentence of death in Zimbabwe, until the law envisaged under Section 48 (2) of the Constitution has been passed. The above issues are complicated, and plunge this Court at the deep end of constitutional interpretation. At the end of the day, this Court will be called to consider the following:-

Whether or not the new Constitution saves and preserves the death penalty or, rather, whether those persons that have not been executed can be, executed before the law envisaged in Section 48 (2) has been passed.

At the end of the day, the Court will have to consider whether or not, as argued by the State, the Constitution applies retrospectively in respect of convicted persons awaiting execution.

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