Applicant's Heads of Argument in Makoni v The Commissioner of Prisons and Another

IN THE CONSTITUTIONAL COURT OF ZIMBABWE  HELD AT HARARE

 

In the matter between:-

 

OBADIAH MAKONI                                                                       APPLICANT

 

AND

 

THE COMMISSIONER OF PRISONS                                                         1ST RESPONDENT

THE MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS           2ND RESPONDENT

 

APPLICANT’S HEADS OF ARGUMENT

  1. GENERAL

This matter, raises the important issue of whether, an irreducible sentence of life imprisonment, is constitutional.  Put differently, the key question in casu is whether or not an irreducible life sentence, which offers no hope of release to a prisoner, is consistent with the provisions of Sections 51; 53 and 56 of the Constitution of Zimbabwe

As a secondary issue, will be the constitutionality of the provision of Section 112, of the Prisons Act [Chapter 7:11] which gives rights of parole to all other prisoners, except those sentenced to life. 

Lastly, within the subjective circumstances of this case and given the Applicant’s own long incarceration, whether or not to subject the same to a further period of incarceration is not a breach of Section 53 of the Constitution of Zimbabwe. 

  1. SOME THOUGHTS ON CONSTITUTIONAL INTERPRETATION

This case, comes at an important juncture in the history of our country.  The case coincides with the period of infancy of the new Constitution, this Constitutional Court and the interpretation of the Constitution thereof. 

Coming early in the early life of the new Constitution, this case, affords this Honourable Court the opportunity of defining, its own constitutional footprint or DNA that would be important in shaping the future jurisprudence of the country and in defining this Constitution for many centuries to come.

Put simply, the present constitutional court has the privilege of being the founding Constitutional Court that is in proximity with the founding fathers of the Constitution and therefore, is in a position to set and define the parameters of the Constitution. 

Breaking with the past

It is respectfully submitted that the present Constitution creates a fundamental break with the past and for that reason, in interpreting it, the court must amplify, loudly, the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom. 

In addition, creating that break with the past, requires that the court takes into account international law and all treaties and convections to which Zimbabwe is a party.

There is a new game in town and that is of constitutionalism and more importantly that the Constitution, creates a break with the past.   

It is common cause that the Constitution that was ushered in May of 2013, followed a long history of contestation and conflict in this country and many failed attempts to bring about a new Constitution. 

The old Constitution of Zimbabwe, SI 1979/1600 of the United Kingdom, was essentially negotiated at Lancaster House in London.  Over the years, there has been a quest, to ensure and create a New Constitution by Zimbabweans and for Zimbabweans. 

A major quest of Constitutional reform, took place in 1999 when the President, through Proclamation No. 6 of 1999 contained in SI 138 (A) of 1999; set up and appointed a Constitutional Review Commission (CRC) chaired by then Judge President Chidyausiku.

The CRC, did considerable work which was eventually referred to Referendum on the 10th and 11th February of 2000.  See Mushayakarara & Another v Chidyausiku  NO & Others 2000 (1) ZLR 227 (H).

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