DANIS DAVID KONSON
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC,
GARWE JCC, GOWORA JCC, HLATSWAYO JCC,
PATEL JCC, GUVAVA JCC & MAVANGIRA AJCC
HARARE, MARCH 11 & JULY 22, 2015
L Nkomo with him R Ndlovu, for the applicant
A Mureriwa, for the respondent
GOWORA JCC: On 3 February 2014 under Case No HB 158/13, the High Court sitting at Bulawayo convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.
The background facts surrounding the applicant’s conviction and sentence were the following. The deceased and the applicant had a love relationship which had, at the time of the deceased’s demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.
The applicant was not happy with this development. After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence accompanied by a friend and a police detail. Thereafter the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant and thereafter his conviction. An automatic appeal followed against the conviction and sentence by operation of law.
On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of s 175 (4) of the Constitution of Zimbabwe, (“the Constitution”). The relevant section reads:
“(4) Powers of courts in constitutional matters
If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and if so requested by any party to the proceedings must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”
The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:
“IT IS ORDERED THAT:
Two constitutional issues have arisen.
- The appellant alleges that his right to a fair hearing guaranteed by s 69(1) of the Constitution of Zimbabwe was violated by the presiding Judge who descended into the arena.
- The appellant was given a sentence which was not competent in terms of the law. In particular he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of s 48(2) of the Constitution of Zimbabwe.”
Before us, counsel for the applicant and the respondent are agreed that the application is properly before this Court. I proceed now to consider each of the issues referred to this court for determination.