CCZ 09-15 - MWONZORA & 31 OTHERS vs THE STATE

DOUGLAS     TOGARASEI     MWONZORA   &   31   ORS

v

THE     STATE

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,

GWAUNZA JCC, GARWE JCC, GOWORA JCC,

HLATSHWAYO JCC, GUVAVA JCC, & MAVANGIRA AJCC

HARARE, JUNE 11, 2014

Z T Chadambuka, for the applicants

E Nyazamba, for the respondent

 

GARWE JA:

[1]      After perusing the papers filed of record and hearing counsel, the court dismissed the application and indicated that the reasons for the order would follow in due course.

[2]      What follow are the reasons for that order.

FACTUAL BACKGROUND

[3]      The applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of public violence as defined in Section 36 of the Criminal Law [Codification and Reform] Act, [Chapter 9:23].  The applicants were legally represented.  At the hearing the applicants raised a number of complaints regarding the manner of their arrest.  The matter was thereafter postponed on a number of occasions to enable the Court to deal with the various issues raised.  On a date that is unclear on the record but in May 2011, the applicants, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of s 24 (2) of the former Constitution of Zimbabwe.  They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons.

[4]      In the application, the applicants raised the following issues:

-   Whether or not the manner of their arrest violated their right to liberty protected by s 13(1) of the former Constitution.

-    Whether or not the failure by the police to apprehend the persons who had abducted, tortured and assaulted them violated their right to the protection of the law enshrined in s 18 (1).

-    Whether or not the discretion to arrest bestowed upon the police was not improperly exercised.

-   Whether or not the assaults, perpetrated upon them, as well as the subsequent torture and denial of medical attention, constituted inhuman and degrading treatment.

-     Whether or not the failure by the State to cause investigations to be carried out into these complaints violated their rights under s 18 (1) and 18 (1) (a) of the Constitution.

-     Whether or not their detention at Nyamaropa and Nyanga Police Stations was under conditions that constituted inhuman and degrading treatment.

-    Whether or not s 121 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides that a person who has been granted bail by a court shall remain in custody for a period of up to 7 days once the Attorney- General indicates that he intends to appeal the decision, violates their right to the protection of the law.

[5]      During the hearing before the Magistrate, the applicants did not lead any evidence to substantiate these claims.

[6]      In his response, the prosecutor indicated that the application for referral was opposed.  He denied the suggestion that the police did not have a reasonable suspicion that a crime had been committed at the time they arrested the applicants.

[7]      In a terse judgment, the magistrate held that the issues of over detention and alleged kidnapping of the applicants deserved “the attention of the Supreme Court which court would need to make a proper inquiry”.  On that basis he then referred the matter to the Supreme Court.

ISSUES FOR DETERMINATION BEFORE THIS COURT

[8]      In his submissions before us, Mr Chadambuka, for the applicants, submitted that the rights of the applicants have been violated in several respects.  He therefore implored the court to issue various declaraturs and, as consequent relief, an order permanently staying the criminal proceedings they were being subjected to.

[9]      On the other hand, Mr Nyazamba, for the State, urged this Court to find that no proper inquiry had been carried out before the Magistrates’ Court and, most importantly, the failure by the applicants to lead evidence to substantiate their allegations was fatal.  He therefore prayed for the dismissal of the application.

2015

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