Applicants' Supplementary Heads of Argument in Ndlovu & Another v Minister of Justice & Another




In the matter between:-


FARAI LAWRENCE NDLOVU                                                                1ST APPLICANT


WISDOM GOCHERA                                                                            2ND APPLICANT






THE ATTORNEY GENERAL                                                           2ND RESPONDENT




The Applicants make the following further submissions in response to the Respondents’ Heads of Argument.

A. The Applicants’ case in outline

In essence, the Applicants’ case can be reduced to the following propositions:-

First, the Applicants do not contend that their convictions or sentence were unconstitutional or otherwise unlawful when they were imposed. They contend, however, that the position has changed fundamentally since the new Constitution entered into force. In particular, like anyone else in Zimbabwe, they are entitled now to the protection afforded by section 48 of the Constitution and to a remedy from the Constitutional Court to protect their rights under section 48.

Second, the effect of section 48(2) is that no person can be sentenced to death unless they are sentenced under a law that permits the imposition of death only for murder committed in aggravating circumstances.

Third, if the death penalty has been imposed under a law that does not meet those requirements, that penalty is unconstitutional for violation of the qualified right to life.

Fourth, the death penalty cannot lawfully be carried out if it was imposed in violation of section 48(2). The execution of the sentence would violate the right to life otherwise than to the extent specified in section 48, and would therefore be unconstitutional (see section 86(3)(a) of the Constitution: “No law may limit the following rights enshrined in this Chapter, and no person may violate them -- a) the right to life, except to the extent specified in section 48”…).

Fifth, the Applicants’ sentences are now unconstitutional for either or both of the reasons identified above: they were imposed under a law that fails to meet the requirements under section 48(2); and they can never lawfully be carried out for that reason.

Sixth, the Applicants are entitled to the protection of section 48(2) even though they were sentenced before the new Constitution came into force, because they are challenging their current and ongoing sentences, not a historical event. So this case has nothing to do with the “retroactivity” or “retrospectivity” of the new Constitution. See further paragraphs 13-20 below.

Seventh, the Applicants are entitled to an appropriate remedy. Such remedy could and should have been provided by the Executive. When the new Constitution entered into force, it should have been apparent that no one could be lawfully executed in Zimbabwe unless sentenced under a law conforming to section 48(2) of the Constitution. In response, the Executive should have commuted the sentences of prisoners sentenced to death to life imprisonment. That did not happen, so the Applicants are entitled to approach this Court alleging that their right to life "has been, is being or is likely to be infringed" (section 85(1) of the Constitution) by reference to their sentence of death, with a view to obtaining appropriate relief.

The Applicants invite the Court to provide a remedy by way of an order commuting their sentences of death to life imprisonment or, alternatively, to a declaration that they are now entitled to commutation of their sentences by the Executive to life imprisonment. In either event, the meaning of “life imprisonment” will be clarified in another matter currently before the Court.

The Applicants’ submissions above flow from an ordinary and natural reading of section 48(2). The Constitution means what it says: the death penalty is unconstitutional unless imposed in accordance with a law meeting the requirements set out in that provision. The Applicants’ submissions are forcefully supported by the supreme value attached to the right to life among other fundamental rights and freedoms and the importance of giving a generous and purposive interpretation to constitutional provisions relating to fundamental rights (see the constitutional interpretative principles rehearsed in Part B of the Applicants’ Heads of Argument).

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