Court Watch 18-2012


[6th October 2012]

Current Supreme Court Cases

Anglican Church Cases for Supreme Court

During the week beginning Monday 22nd October the Supreme Court will deal with seven appeals on court cases between the mainstream Anglican Church recognised world wide and a breakaway local church.  Dr Nolbert Kunonga previously Bishop of Harare, broke away from the Anglican Church of the Province of Central Africa to set up his own new Province of Zimbabwe and has taken over much Anglican church property although the Anglican world body no longer recognised him as Bishop of Harare.  The recognised Anglican Church continued under a legitimate elected Bishop of Harare – first Bishop Sebastian Bakare and now Bishop Chad Gandiya.  The cases involve the property of the Anglican Church owned by the Church of the Province of Central Africa and hitherto administered by a board of trustees chaired by the Bishop of Harare. The whole week has been allocated to these appeals, which will be heard one after the other. 

The President v The Prime Minister – the Provincial Governors case

Reminder  This case dates from November 2010, when the Prime Minister went to the High Court to challenge the constitutionality of President’s unilateral appointment of provincial governors.  The President’s lawyer raised a preliminary procedural objection to the Prime Minister suing the President without first getting the leave of a High Court judge to do so.  High Court Judge-President Chiweshe overruled this objection, taking the view that the rule of court cited by the President was not applicable to legal action against the President in his official capacity;  he also refused to allow the President to appeal to the Supreme Court, pointing out that the Supreme Court had decided the point in another case in 2000.  Dissatisfied with this decision, the President, as he was entitled to do, applied to the Chief Justice for leave to appeal to the Supreme Court on the procedural point.  [see Court Watch 14/2012 of 28th July and 15/2012 of 24th August] 

Chief Justice allows President to appeal  On 19th September Chief Justice Chidyausiku granted the President leave to appeal to the Supreme Court.  This was with the consent of the Prime Minister, who through his lawyers withdrew his initial opposition to the appeal going ahead.  The Chief Justice will be handing down a judgment setting out his reasons for granting leave to appeal, i.e., explaining why the procedural point needs to be re-considered by the Supreme Court.  

Effect  This means there will now be a full appeal before the Supreme Court on the procedural objection only.  It will inevitably take time for that appeal to be heard and decided, making a ruling before the end of the year most unlikely.  And if the Supreme Court eventually upholds the President’s objection, that will probably be the end of the Prime Minister’s case – by then there may be little or no practical value in having a court ruling invalidating the President’s appointment of the provincial governors.

Other Supreme Court Cases: Hearings Delayed

Mutambara v Ncube – MDC Leadership Dispute:  Hearing Delayed

Reminder:  Two appeals about the leadership of the MDC await hearing in the Supreme Court.  Professor Mutambara and a group of his supporters are asking the Supreme Court to reverse High Court decisions confirming the January 2011 election of Professor Welshman Ncube as leader of the party.  [See Court Watch 14/2012 of 28th July.] 

Preliminary point raised by Ncube side  The Supreme Court’s rules of procedure require an appellant to provide security for the legal costs of the other side should the Supreme Court in due course turn down the appeal and order the appellant to pay the other side’s costs.  The Ncube side’s lawyers have taken the point that the appeals cannot go ahead because the appellants – the Mutambara camp – did not comply with this requirement when filing their appeals.  The Mutambara side’s lawyers say that their written undertaking to bear costs if ordered to do so was sufficient compliance with the rule and pointed out that there had been such a long delay from the other side in querying the undertaking that it was now too late to raise this issue.  Chief Justice Chidyausiku heard legal argument from both sides in chambers on 26th September and reserved judgment until a later date. 

Private Member’s Bills case postponed: Minister Chombo v Parliament

Reminder:  In this case Minister of Local Government, Rural and Urban Development Ignatious Chombo has asked the Supreme Court to bar the Urban Councils Amendment Bill, a Private Member’s bill, from being considered by Parliament.   The Bill would, if passed, severely restrict the present wide powers of the Minister over local authorities.  The contention on behalf of the Minister is that Article 20 of the GPA, as set out in Schedule 8 to the Constitution, prohibits all Private Member’s Bills during the subsistence of the GPA.  [See Bill Watch 20 and 21 of 15th May 2012]  The Clerk and Parliament’s presiding officers, cited as respondents in the Minister’s court papers, lodged papers opposing the application. 

Appeal hearing postponed:  The court postponed the hearing due on 27th September.  The reason for this was that the judges felt the Minister should have cited the mover and seconder of the Bill in the House of Assembly as respondents to the appeal, in addition to the Clerk, the Speaker and the President of the Senate, as they should also have an opportunity to state their position on the Minister’s application.  The Minister’s lawyers have since served the necessary papers on the two MDC-T MPs concerned, and their responses are being processed.  A date for the resumption of the hearing is still to be fixed. 

Comment: In deference to Parliament’s sub judice rule, the Bill remains stalled in Parliament pending the Supreme Court’s decision.  Unfortunately this has also stalled two other Private Member’s Bills, one to amend the Public Order and Security Act [POSA] and the other to repeal section 121(3) of the Criminal Procedure and Evidence Act.  This is a great pity as getting these through Parliament would go a little way towards the reforms necessary before the next elections.

Mwonzora and Others v The State: Pre-Trial Mistreatment of Accused Persons 

[previously covered in Court Watch 3/2011, 9/2012, and 15/2012] 

Reminder:  The Supreme Court was asked to determine whether the constitutional rights of MDC-T MP Douglas Mwonzora and his twenty-one co accused were violated while they were in detention in February and March 2011.  The accused were arrested and detained on allegations of public violence in contravention of section 36(1)(a) of the Criminal Law Codification and Reform Act [the Criminal Law Code].  The incident leading to these charges followed an MDC-T meeting addressed by Mr Mwonzora in his Nyanga North constituency.  The accused say they were held incommunicado in illegal solitary confinement, assaulted, prevented from seeing their lawyers and denied food, water and medical attention for the three days that they were held in police custody. They were in remand prison for nearly three weeks after the State invoked section 121(3) of the CPE Act to prevent the operation of the bail order that the magistrate had granted.  During this period of incarceration the health of one of the accused, Headman Nyakauru, aged 82, deteriorated significantly and his condition was aggravated by denial of access to private medical attention; he died shortly after his release. 

The constitutional issues  The constitutional issues before the court are: the complaints of inhuman and degrading treatment, and violation of constitutional rights to liberty and protection of the law as enshrined in sections 15, 13 and 18 of the Constitution and the constitutionality of section 121 (3) of the CPE Act.  The main remedy asked for, as in the Jestina Mukoko case, is the stopping of the prosecution. 

Case postponed for further evidence  The Supreme Court hearing was due on 20th September 2012 but did not proceed.  It was postponed indefinitely to allow further evidence to be filed on behalf of Mr Mwonzora and the other accused persons about the treatment to which they were subjected. 

Comment:  As Mr Mwonzora and his co-accused are asking the Supreme Court to stop the prosecution, the Supreme Court’s judgment in the Mukoko case, handed down on 20th September [see Court Watch 17/2012 of 4th October] will influence how this case is argued when the hearing resumes and how it is decided by the Supreme Court.

“Goblin”/Freedom of speech case – Prosecution for insulting the President:

Reminder:  In this case Douglas Mwonzora MP is prosecuted with insulting the President in contravention of section 33 of the Criminal Law Code.  Many others, including foreign visitors to Zimbabwe, have found themselves facing similar charges in the magistrates courts.  Section 33 criminalises publicly making statements that may cause feelings of hostility towards, or cause hatred, ridicule or contempt of, the President – whether in person or “in respect of the office of President”.  The maximum penalty on conviction is a fine of $300 or six months in prison or both.   

Mr Mwonzora is alleged to have compared the President to a goblin in the course of a speech at a rally in Nyanga in March 2009.  He successfully petitioned the magistrate to have the matter referred to the Supreme Court for a ruling on the constitutionality of section 33, claiming that it infringes the constitutional rights to freedom of speech, assembly and thought, is too broad and vague to qualify as a law and is not reasonably justifiable in a democratic society – particularly so when the President is a highly political figure. 

Case postponed:  These issues were expected to be thrashed out in argument before the Supreme Court on 4th October.  But the State’s heads of argument, i.e. the written summary of its argument and the legal precedents to be cited, had not been filed in advance of the hearing as required by the rules of court.  The court therefore indefinitely postponed the hearing until the heads of argument have been filed.

Comment – It is a pity that this important case has had to be postponed in view of the many others in which people have been and are still being taken to court for this offence.  Zimbabwe Lawyers for Human Rights are handling 38 such cases.  Section 33 of the Criminal Law Code is one of several provisions in the Code that have prompted civil society calls for repeal or rewriting in the interests of certainty and clarity in the law. 


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