- KISIMUSI EMMANUEL DHLAMINI (2) GANDI MUDZINGWA (3) CHINOTO M. ZULU (4) ANDRISON MANYERE (5) ZACHARIAH NKOMO (6) REGIS MUJEYE (7) MAPFUMO GARUTSA
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,
GARWE JA & CHEDA AJA
HARARE, SEPTEMBER 15, 2011 & MARCH 17, 2014
T Bhatasara with him A M Muchadehama, for the applicants
C Mutangadura with him M Dube, for the respondent
MALABA DCJ: This is a referral by the High Court for determination under s 24(2) of the Constitution of Zimbabwe of questions of alleged violations of the fundamental rights of the applicants guaranteed under ss 13(1) (right to personal liberty); 15(1) (right not to be subjected to torture or to inhuman or degrading treatment) and 18(1) (right to the protection of the law).
The applicants seek the following relief:
A declaration that their rights, in terms of ss 13(1), 15(1) and 18(1) of the Constitution have been violated
An order for a permanent stay of the criminal proceedings before the High Court
An order for mandamus directing the Attorney General to act in terms of s 76 (4a) of the Constitution of Zimbabwe and investigate the alleged offences committed against the applicants
A special order as to costs.
At the inception of the hearing before this Court, Mr Mutangadura, who appeared for the respondent, raised four points in limine. The most important point the determination of which disposes of the matter is that the referral to the Supreme Court by the High Court, of the questions of the alleged violations of the rights of the applicants at the stage of the proceedings in which it was done is prohibited by s 24(3) of the Constitution. The point in limine is properly taken as the referral was incompetent.
The facts are as follows. It was alleged by the applicants at their initial remand hearing before the Magistrates Court that they were abducted from various places in Harare, Norton and Masvingo, between 25 November 2008 and 13 December 2008 by members of the State security agency.
The applicants alleged that they were taken to a secret detention centre which they later found out to be Goromonzi Prison, where they were kept incommunicado until 22 December 2008. They were allegedly denied access to families, legal counsel and medical treatment for injuries sustained as a result of torture inflicted by the abductors.
For the purposes of this judgment the following are the facts which appear from the affidavits of all the applicants:
The modus operandi used in the alleged abductions is that each applicant had hands handcuffed behind his back, blindfolded and driven around to disorientate. They were all detained at Goromonzi Prison.
The applicants were released from illegal detention on 22 December 2008 into the custody of the police and detained at various police stations.
The alleged abductors tried to conceal the location of their detention centre.
Statements were recorded from the applicants on 22 and 23 December 2008 in the absence of their legal representatives.
All the applicants were blindfolded when handed over to police stations on 22 December 2008 and when taken to record statements on 22 and 23 December 2008, in a bid to prevent them from seeing their abductors.
On 29 December 2008 the applicants were taken to Rotten Row Magistrates’ Court for initial remand. They were each charged with insurgency, banditry, sabotage or terrorism in contravention of s 23(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Cap. 9:23] (“the Criminal Code”) alternatively malicious damage to property in contravention of s 140 of the Criminal Code. Medical affidavits from two doctors who examined the applicants while in custody were produced to the court a quo. The reports were to the effect that the applicants had evidence of healed bodily injuries consistent with torture. They also exhibited clinical symptoms of psychological trauma.
The magistrate ordered an investigation into the allegations of abduction and torture. Senior Assistant Commissioner Nyathi tendered his report to the court on 21 January 2009. On the same day, the then Minister of State Security in the President’s office, deposed to an affidavit in terms of s 296 of the Criminal Procedure and Evidence Act [Cap. 9:07]. He declined to disclose the places where the applicants had been detained and identities of State security agents involved in the investigation of the allegations against the applicants. The Minister denied that State security agents were involved in the alleged abduction, torture or illegal detention of the applicants admitting only that they were involved in investigating them for the alleged commission of the offences with which they were charged.
It is common cause that the applicants challenged the application by the State to have them placed on remand. They raised at that stage the question of their detention as a violation of their fundamental right to personal liberty. They did not request the magistrate to refer any such question to the Supreme Court for determination. The magistrate granted the application by the State and placed the applicants on remand on the ground that there was a reasonable suspicion that they had committed the offences with which they were charged. If the applicants were of the view that the decision to place them on remand was a violation of their fundamental right to the protection of the law they could as an exceptional remedy have made that allegation in an application to the Supreme Court for redress in terms of s 24(1) of the Constitution had they requested before the decision to remand them was made that the question of violation of their right to personal liberty be referred to the Supreme Court for determination and that request had been refused on the ground that the raising of the question was frivolous and vexatious. The Supreme Court would then have decided whether the decision to place the applicants on remand was a violation of their right to the protection of the law under s 18(1) of the Constitution. They did not invoke the provisions of s 24(2) of the Constitution at the time they ought to have done. The applicants accepted the legality of the decision to place them on remand on the basis of which they were arraigned before the High Court in July 2009.
Prima facie, in finding that there was reasonable suspicion that the applicants committed the offences with which they were charged, the magistrate did not violate the applicants’ right to personal liberty. On 25 February 2009 the High Court held in cases HC 42/09 and HC 147/09 on review that the decision of the magistrate to place the applicants on remand was based on a proper application of the principle and finding on the facts that there was a reasonable suspicion that the applicants had committed the offences of which they were charged.
It is clear that s 24(2)of the Constitution was designed to enable the Supreme Court to adjudicate and consider the question whether there has been or there is likely to be a contravention of the Declaration of Rights, as a court of first instance exercising original jurisdiction.
Section 24(2) provides that:
“(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”
Mr Mutangadura argued that what was required of the applicants was the raising of a question of a contravention of the Declaration of Rights and a request that the presiding magistrate refer the question to the Supreme Court for determination. In this case, the question was raised before the magistrate at the initial remand without a request that it be referred to the Supreme Court for determination.