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

These submissions consolidate the Applicants’ Heads of Argument, dated 6 August 2015 and the Applicants’ Further Heads of Argument, dated 20 October 2015 into a single set of submissions. They also incorporate a number of amendments to those submissions.

  1. General

The Applicants, regrettably, are convicted murderers.  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.

 

  1. SUMMARY OF THE APPLICANTS’ ARGUMENTS

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.  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. In summary, the Applicants’ submissions in support of their 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 Sections 48 and 86 of the Constitution and to a remedy from the Constitutional Court to protect their rights under these sections.

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 valid imposition of a death sentence does not automatically mean that the implementation of that sentence is also valid.  It can be rendered invalid by subsequent events. In this case, the subsequent event is Zimbabwe’s adoption of the new Constitution.

Fifth, 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”…).

Sixth, the Applicants’ sentences are now unconstitutional for 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.

Seventh, 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 a prospective element of their current sentences, not historical events. This case has nothing to do with the “retroactivity” or “retrospectivity” of the new Constitution. See Part F below.

Eighth, when the commencement of new Constitution, 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 cases where a criminal appeal against a death sentence was pending, those appeals should have been decided in accordance with the standards of the new Constitution and not under the provisions of the Criminal Code and Criminal Procedure Act, which were, by then, unconstitutional and no longer in force. With regard to prisoners sentenced to death who had exhausted the criminal appeal process, the just action was for the Executive to commute their death sentences and substitute them with terms of imprisonment.  In neither of the Applicants’ cases was the appropriate course adopted and they are entitled to a remedy.

Ninth, the Applicants are entitled to approach this Court, under section 85(1) of the Constitution, on the basis that their right to life "has been, is being or is likely to be infringed" by reference to their sentence of death and with a view to obtaining appropriate relief.

Thus, the Applicants invite this Honorable Court to make the declarations set out in the Amended Draft Order, and further, to provide a remedy for each of the Applicants in the following terms:-

in the case of the First Applicant, an order quashing his death sentence and remitting his matter for resentencing; and

in the case of the Second Applicant, an order substituting his death sentence with a term of imprisonment.

Additionally, the Applicants 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 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 C below).

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