Consolidated... · Web viewIt 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

IN THE CONSTITUTIONAL COURT OF ZIMBABWE CASE No.CCZ50/15HELD AT HARARE

In the matter between:-

FARAI LAWRENCE NDLOVU 1ST APPLICANT

WISDOM GOCHERA 2ND APPLICANT

AND

MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS 1ST RESPONDENT

THE ATTORNEY-GENERAL 2ND RESPONDENT

APPLICANTS’ CONSOLIDATED HEADS OF ARGUMENT

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.

A. General

1. The Applicants, regrettably, are convicted murderers. The First Applicant was

convicted by Justice Cheda in the High Court of Bulawayo on the 24 th of May

2012.

Page 1 of 32 Consolidated Heads of Argument in the matter between

Farai Lawrence Ndlovu & Another v. Minister of Justice, Legal & Parliamentary Affairs & Another Case Number: CCZ 50/2015Prepared by Tendai Biti Law

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2. 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.

3. The Second Respondent was convicted of murder by Justice Paradza on the 27th

of July 2002.

4. 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.

B. 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:-

i. 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



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Sections 48 and 86 of the Constitution and to a remedy from the

Constitutional Court to protect their rights under these sections.

ii. 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.

iii. 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.

iv. 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.

v. 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”…).

vi. Sixth , the Applicants’ sentences are now unconstitutional for the reasons

identified above: they were imposed under a law that fails to meet the



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requirements under Section 48(2); and they can never lawfully be carried

out for that reason.

vii. 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.

viii. 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.

ix. 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.



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5. 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:-

(i) in the case of the First Applicant, an order quashing his death sentence

and remitting his matter for resentencing; and

(ii) in the case of the Second Applicant, an order substituting his death

sentence with a term of imprisonment.

6. 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.

7. 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).

C. COMMENTS ON CONSTITUTIONAL INTERPRETATION



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8. To the extent that this case involves constitutional interpretation, it is important

to define the ground rules relating to the interpretation of the constitution.

The text

9. In Hewlett v Minister of Finance & Another 1981 ZLR 571, Fieldsend CJ correctly

held that the starting point in interpreting the Constitution must be found in the

words used in the Constitution. He stated as follows:-

“... In general the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation. It is necessary to look to the words used and to deduce from them what any particular section, phrase or word means, having regard to the overall context in which it appears.”

This starting point, the context of the text, was also restated by Kentridge JA in

State v Zuma and Others 1995 (2) SA 642 (CC) wherein he stated as follows:-

“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument … the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination ... I would say that a Constitution ‘embodying fundamental principles should as far as its language permits be given a broad construction.”

Guidance from the Constitution itself



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10. The words and language used in the Constitution are the obvious starting point.

But sight must not be lost of the fact that the Constitution itself defines the

manner in which it must be interpreted. This is done in Section 46 of the

Constitution which reads as follows:-

“(1) When interpreting this Chapter, a court, tribunal, forum or body –

(a) must give full effect to the rights and freedoms enshrined in this Chapter;

(b) must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3;

(c) must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) must pay due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) may consider relevant foreign law;

in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

The Section thus enjoins a number of key principles and matrixes that shall guide

statutory interpretation. Chief among these is the obligation on the court to give

full effect to the rights and freedoms enshrined in the Declaration of Rights. For

the purposes of this case, the right that is sought to be asserted is the right to life



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defined in Article 48 of the Constitution. The court therefore must favour an

approach that gives full effect to that right.

11. In other words, the court must not play the role of a neutral bystander. The

rights given therein are rights of individuals against the State. Where there is a

dispute between individuals and the State, the Constitution obliges this Court to

promote and protect the individual rights and freedoms enshrined in Chapter 4

in order to give them full effect.

12. A further imperative arising out of Section 46 is the court’s obligation to promote

the values and principles that underlie a democratic society based on openness,

justice, human dignity equality and freedom. Once more, in this regard, it is

respectfully submitted that a democratic society based on openness, justice,

human dignity, equality and freedom, would have a great aversion to the death

penalty in general.

13. More fully, that ideal society, as captured in Section 8(1) of the Constitution,

would favour an approach that promotes the right to life as the most sacred of

all rights.

Purposive approach

14. The purposive approach to constitutional interpretation is one that is aimed at

interrogating and teasing out the core values that underpin the listed

fundamental rights in an open and democratic society based on human rights

and dignity, equality and freedom.



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15. An authoritative statement of the purposive approach to constitutional

interpretation is the Canadian Supreme Court decision of R v Big M Drug Mart

Ltd 1984 18 DLR (4th), wherein the Court stated:-

“The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interest it was meant to protect. In my view, this analysis is to be undertaken, and the purposes of the right or freedom in question is to be sought, by references to the character and larger objects of the Charter [of Rights and Freedoms] itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.”

16. The purposive approach is key in constitutional interpretation and has found

room in a number of key decisions in our jurisdictions. See State v Mhlungu &

Others 1995 (3) SA 391 (CC); State v Twala 2000 (1) SA 879 (CC); Ex Parte Attorney

General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76

(NmSC). Applying the same to the instant matter, there is no doubt that the key

imperative in the Declaration of Rights is the protection of the right to life as

defined by Section 48.

17. What is also self-evident is that the drafters of the Zimbabwean Constitution

were in favour of limiting the application of the death penalty by only allowing

for its possibility in very restricted circumstances. Thus, despite the fact that it

was known that the existing law already provided for the death penalty, the



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Constitution intentionally states that a law may be passed permitting the death

penalty in the limited terms specified. There is no continuation of the old law,

rather, it is the possibility of the death penalty that is provided for. This is self-

evident from the clear language of Section 48(2) of the Constitution. The

discontinuation of the old law is further discussed in Part D.

18. The fact that any future application of the death penalty must be confined to a

restricted group also betrays an intention to avoid the death penalty. Thus

women were completely saved from execution despite the fact that they may

have committed the very same offence as man. Further, unlike the old

Constitution and the old legal regime, the minimum age of the death penalty was

raised to 21 years and a new upper age limit of 70 years was imposed.

19. Further, two critical limitations were made: first, the conviction for murder must

be with aggravating circumstances and, second, even if accompanied by

aggravating circumstances, the law must permit the court discretion on whether

or not to impose the death penalty. The issue of aggravating circumstances is a

new one and is not defined. But quite clearly, the intention of the drafters of the

Constitution was to make only the most heinous of murders liable to the death

penalty. Moreover, unlike the old law which did not grant discretion to the court

once extenuating circumstances were absent, the court now has a complete

discretion.

20. The purposive approach, therefore, should be alive to the fact that the law

envisaged in Section 46 must be crafted on the principle of a presumption to life

and against the application of the death penalty.



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Progressive interpretation

21. The court is also enjoined to adopt a progressive interpretation. The doctrine of

progressive interpretation was captured by Lord Sankey, who described a

Constitution as “a living tree capable of growth and expansion within its natural

limits”, in Edwards v Attorney General Canada 1930 AC 124. Thus, if the

Constitution is a living tree, according to Lord Sankey, it cannot be “cut down” by

“a narrow and technical construction” but should be given “a large and generous

interpretation”. See also British Coal Corporation v The King 1935 AC 500.

Generous interpretation

22. A corollary to the progressive interpretation is, of course, a generous

interpretation. A generous interpretation is one that promotes the freedom and

liberty contained in the Bill of Rights.

23. In Minister of Home Affairs (Bermuda) v Fisher 1979 (3) ALL ER 121, Lord

Wilberforce defined the doctrine of generous interpretation in the following

terms:-

“a generous interpretation... suitable to give to individuals, the full measures of the fundamental rights and freedoms referred to ...”

and that the Constitution called for ‘principles of interpretation of its

own.’ He went on to say:

“This is no way to say that there are no rules of law which should apply to the interpretation of a Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be



4 January 2016

paid to the language which has been used, to the traditions and the usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principles of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.”

24. In casu, the generous interpretation must demand that this court puts on a

specific lens interpreting Part 4 of the 6th Schedule to the Zimbabwean

Constitution. A generous and progressive interpretation demands taking a dim

view towards any argument that seeks to perpetuate the death penalty or

execution thereof in the absence of the law clearly envisaged by Section 48 (2) of

the Constitution of Zimbabwe.

25. With these remarks, it is now proposed to deal with the merits of the matter.

D. ZIMBABWE’S CURRENT DEATH PENALTY LAWS DO NOT CONFORM WITH THE

NEW CONSTITUTION

The status of previously enacted legislation under the new Constitution

26. As to the status of the relevant legislative and constitutional provisions and the

scope of any transitional provisions, it is submitted that:

(i) The Applicants enjoy the full protection of the right to life specifically as

that right is enshrined in Section 48(1) of the Constitution.



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(ii) The former Constitution has no bearing on their current position because

it has been repealed for all relevant purposes. There are no relevant

transitional provisions.

(iii) The legislation under which the Applicants were sentenced to death

remain in force, but only to the extent that it is consistent with the

current Constitution.

27. The mechanism for the enactment of the new Constitution and the repeal of the

former Constitution was established in Section 3 of the Constitution of Zimbabwe

Amendment (No. 20) Act, 2013:-

“3 Repeal of existing Constitution by new Constitution

(1) Subject to subsection (2), the existing Constitution is repealed and substituted by the new Constitution.

(2) For the avoidance of doubt it [is] declared that—

(a) the new Constitution is enacted on the ‘publication day’ as defined in the Sixth Schedule to that Constitution, that is to say, on the date on which this Act is published in the Gazette in accordance with section 51(5) of the existing Constitution; and

(b) with effect from the date of enactment of the new Constitution as described in paragraph (a), the existing Constitution remains in force to the extent specified in the Sixth Schedule of the new Constitution”.



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28. Further details are provided in the Constitution itself. First, under section 329 of

the Constitution, it entered into force on such terms and subject to such

transitional provisions as are set out in its 6th Schedule

29. Second, the right to life provisions in section 48 of the Constitution, being part of

the Declaration of Rights, entered into force on the day of enactment (22nd May

2013): see paragraph 3(1) of the 6th Schedule.

30. Third, the previous Constitution was repealed subject only to the limitations in

the 6th Schedule (which have no bearing on the present case), from the “effective

date” (the date on which the new Constitution came wholly into operation): see

paragraphs 1 and 4 of the 6th Schedule and Section 3(2)(b) of the Constitution of

Zimbabwe Amendment (No. 20) Act, 2013 (above). So the previous Constitution

has no bearing or effect in the present case and it is incapable of limiting the

Applicants’ rights under the current Constitution.

31. Fourth, the criminal law provisions under which the Applicants were sentenced

to death are valid only insofar as they are compatible with the current

Constitution. This is the clear effect of paragraph 10 of the 6th Schedule:-

“Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution.”

The words “Subject to this Schedule” have no bearing in the present case. There

is nothing in the 6th Schedule that seeks to limit the general rule contained in

paragraph 10 (existing laws must be construed in conformity with the

Constitution) as it applies to the laws under which the Applicants were

sentenced to death.



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The current law does not comply with the terms of Section 48(2)

32. It is submitted that, should the Respondents argue that the current law fulfils the

‘law’ envisaged in Section 48 (2) of the Constitution, the present law in section

47(2) of the Criminal Code and sections 337(a) and 338 of the Criminal Procedure

Code is wholly inadequate, but more importantly, cannot be construed in

conformity with the Constitution without being completely rewritten by the

court.

33. Section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]

reads as follows:-

“Section 47(1) Any person who causes the death of another person –

(a) intending to kill the other person; or

(b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility;

shall be guilty of murder.

(2) Subject to Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless –

(a) the convicted person is under the age of eighteen years at the time of the commission of the crime; or

(b) the court is of the opinion that there are extenuating circumstances; in which event the convicted person shall be liable to imprisonment for life or any shorter period



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(3) A person convicted of attempted murder or of incitement or conspiracy to commit murder shall be liable to be sentenced to death or to imprisonment for life or any shorter period.”

34. Section 47 of the Code refers to Section 337 of the Criminal Procedure and

Evidence Act [Chapter 9:07]. Section 337 and 338 of the Criminal Procedure and

Evidence Act reads as follows:-

“Section 337: Sentence of death for murder

Subject to section three hundred and thirty-eight, the High Court –

(a) shall pass sentence of death upon an offender convicted by it of murder:

Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the offender is a woman convicted of the murder of her newly-born child, the court may impose –

i. a sentence of imprisonment for life; or ii. any sentence other than the death sentence or imprisonment

for life, if the court considers such a sentence appropriate in all the circumstances of the case.

(b) may pass sentence of death upon an offender convicted of treason.”

“Section 338:

Persons upon whom death sentence may not be passed-The High Court shall not pass sentence of death upon an offender who –

(a) is a pregnant woman; or

(b) is over the age of seventy years; or

(c) at the time of the offence, was under the age of eighteen years”.



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35.For the sake of completeness, Section 48(2) of the Constitution states:

“Section 48 (2)

A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and –

(a) the law must permit the court a discretion whether or not to impose the penalty;

(b) the penalty may be carried out only in accordance with a final judgment of a competent court;

(c) the penalty must not be imposed on a person-

(i) who was less than twenty-one years old when the offence was committed; or

(ii) who is more than seventy years old;

(d) the penalty must not be imposed or carried out on a woman; and

(e)the person sentenced must have a right to seek pardon or commutation of the penalty from the President.”

36. It is evident that the existing provisions of the Criminal Code and the Criminal

Procedure and Evidence Act do not conform to Section 48(2). To begin with,

both the Criminal Code and the Criminal Procedure and Evidence Act make it

clear that the imposition of the death penalty is mandatory save where there are

extenuating circumstances, whereas Section 48(2) requires that discretion be

given to the court. Further, Section 48(2) of the Constitution only permits the

possibility of the death penalty for murder where it has been committed in

aggravating circumstances. That is not the case in the law as set out in the

Criminal Code and the Criminal Procedure and Evidence Act. Any law governed

by Section 48(2) must not permit women to be executed nor impose the penalty



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on an individual who was less than 21 years old at the time when the offence

was committed. The Code has a lower age limit of 18 years. Quite clearly,

therefore, the Criminal Code and the Criminal Procedure and Evidence Act are

not in conformity with the new Constitution.

37. Consequently, any death sentence now imposed under those provisions of

would be unconstitutional. The provisions of the Criminal Code and the Criminal

Procedure Act simply do not survive the introduction of the Constitution, due to

their lack of their conformity and their inability to be interpreted in a manner

consistent with the Constitution. In Charles Matthew v The State of Trinidad &

Tobago [2005] AC 433, the Judicial Committee of the Privy Council considered

the extent to which a law can be modified before it becomes totally invalidated:

“… a rational scheme results from construing the power of modification, however broad, to be directed to the preservation of those parts of an existing law which are consistent with the Constitution. In such a case, if the form of the legislation is that some part can be retained, the remedy is modification under section 5(1) to remove the part which is offensive. If the whole is offensive, it is invalidated. In either case, it is only the offensive provisions which are struck down and this is done on the basis of substance rather than form.” (per Lord Hoffman at paragraph 22).

38. This further reinforces the intention of the framers of the Constitution to require

Parliament to revisit the issue of the death penalty and enact a new law, should

continuation of a restricted application of the penalty be deemed appropriate by

its members.



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39. This is a basic interpretation of the law arrived at by merely looking at the text. A

generous, purposive interpretation of the Constitution would also require that

this court comes to the same conclusion.

No law has been enacted to replace the provisions of the Criminal Code or

Criminal Procedure Act

40. The Constitution itself says that there may be a law providing for capital

punishment. Indeed, the Constitution could have stated directly that the right

provided for under Section 48 (1) may be taken away under circumstances

defined in Section 48 (2). However, the Constitution does not do this. The

Constitution only allows for the possibility of a law, which then must comply with

the limitations in Section 48 (2). But, to date, that law is not there. Hence there

is a statutory vacuum as to what penalties may be applicable to the offender

who has committed an offence of murder. Consequently, a right to life cannot

be removed until such law is enacted. (This is unlike a deprivation of liberty

which may follow providing there is a trial and the detention is not arbitrary –

Section 49).

The Constitution does not itself constitute the “law” referred to in section 48(2).

41. The Respondents advance the surprising submission that the Constitution itself is

the law referred to in the opening clause of Section 48(2). That submission is

undoubtedly wrong for any of several reasons.



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42. The Respondents give no hint as to why the drafters of the Constitution might

have meant “the Constitution” when they referred to “a law” in Section 48(2). If

that is what they meant, it would have made the insertion of the qualification,

requiring there to be a law of the kind referred to in subsection (2), completely

meaningless and pointless: the drafters would have created a requirement then

satisfied the requirement in the same language. Such an interpretation of simple

and clear language would be perverse and is obviously wrong.

43. The Respondents’ submission is contracted by the Attorney General’s own

affidavit, in which he frankly acknowledges that the amendments to the

provisions on sentencing for murder are being amended in order to align the

sentence for that offence with the Constitution. The point is further reinforced

by the Memorandum to the Criminal Procedure and Evidence Amendment Bill,

2015, which was no doubt drafted by the Government’s own lawyers, and makes

clear that the proposed amendments in the Bill are required “To repeal

unconstitutional provisions relating to the death penalty” (see page 27 of the

Notice of Opposition). Obviously the government has acknowledged that the

existing provisions on the death penalty are unconstitutional – that is why the

Bill is being pursued, to remedy the unconstitutionality of Sections 47 of the

Criminal Code and Sections, 337 and 338 of the Criminal Procedure and Evidence

Act, which are unlawful and no longer have force and effect. The Respondents

can scarcely aver now that there is no unconstitutionality because the

unlawfulness of these provisions is already resolved by the Constitution itself.

44. It is, therefore, respectfully submitted that there is no basis or reason why the

court should not grant a declaration that Section 47 of the Criminal Code and

Sections 337 and 338 of the Criminal Procedure Act are unconstitutional and that



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no person may be sentenced to death unless and until replacement legislation,

as envisaged by Section 48(2) of the Constitution, are enacted and in force.

E. LEGISLATIVE REFORMS

45. The Respondents also place weight on the fact that legislation is contemplated

that will meet the requirements of Section 48(2) (the Criminal Procedure and

Evidence Amendment Bill, 2015). The Bill however, has no application to the

Applicants’ case before the Court for three reasons:-

(i) The proposed legislation is for now no more than aspiration. It is not the

law of Zimbabwe.

(ii) The Applicants are entitled to a determination of their rights without delay.

(iii) Most importantly, the proposed new legislation will make no difference

whatsoever to the Applicants’ constitutional complaints. Even assuming the

relevant Bill is enacted, it will only affect offenders who are sentenced

under the terms of that future amended legislation. These Applicants are

not and never can be persons who have been sentenced in accordance with

the proposed legislation. They were sentenced under a law that did not

comply with Section 48(2) of the Constitution. There is nothing the

Respondents can do to cure that defect and to comply with the

Constitution other than to commute the Applicants’ sentences to terms of

imprisonment.



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F. RETROSPECTIVITY

46. The Respondents have submitted that, in broad and general terms, the

Zimbabwean Constitution does not apply retrospectively. The Respondents

place great weight on the suggestion that the Applicants are in some way seeking

a “retrospective” or “retroactive” application of the new Constitution, and

invoke various principles of statutory interpretation to this end. Such

submissions are misplaced and irrelevant.

47. In the first place, the issue of retrospectivity does not arise in this matter. The

Applicants are still alive; they were not executed before the Constitution came

into force. If they had been so executed, and if their relatives were now seeking

an order that their sentences or execution was rendered illegal by the new

Constitution, then they would indeed be relying on a retrospective interpretation

of the Constitution. But that is not the case here. What the Applicants are

seeking is an order that they cannot now be executed, after the Constitution has

come into force. Their interpretation of the Constitution is prospective.

48. It is respectfully submitted that the issue is not whether or not the new

Zimbabwean Constitution applies retrospectively. The issue is a question of

interpretation of the provisions of the Constitution. The position is very clear.

The Constitution is in force in respect of the fundamental rights provisions from

22nd May 2013. From that date the preceding Constitution is repealed and of null

effect for present purposes (see above). The Constitution makes clear that

existing laws are valid and constitutional only insofar as they may be construed

in accordance with the new Constitution.



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49. With that simple and compelling starting point in mind, the Applicants’ position

is equally simple. They are entitled to the protection of the right to life and they

are entitled to that protection as set out in Sections 48 and 86 of the new

Constitution, not under the provisions of a repealed Constitution. There is no

rational basis for suggesting otherwise, and the Respondents have adduced no

relevant principle or caselaw to suggest so. The Applicants are seeking

constitutional redress for present or future unconstitutional implementation of

their criminal sentences. In this clear sense there is no issue of retroactivity.

50. Fundamental rights, such as the right to life, apply as much to the execution of a

sentence as they apply to its imposition. This is made clear by the Supreme Court

in Catholic Commission for Justice and Peace v Attorney-General 1993 (4) SA 239

(see, in particular, [247]). A valid imposition of a death sentence does not

automatically mean that a subsequent execution is also valid, for it can be

rendered invalid by subsequent events, as is illustrated by this case.

51. The exclusion of any protection of the Applicants’ constitutional rights in respect

of the execution of their sentences on the basis that they were imposed before

the current Constitution entered into force would do violence to the rule of law.

It would leave the Applicants in a constitutional vacuum, unable to enjoy the

protection of the previous Constitution (because it has been repealed) but at the

same time denied the protection of the new Constitution. It would undermine

the supreme status of the Constitution and the right of every person in

Zimbabwe to enjoy the protections it seeks to afford. That would be an

enormous encroachment on those protections and such restrictions would

require the clearest explicit language in the Constitution. There are no such

restrictions. On the contrary, the Constitution makes clear that its protections



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are universal and pervasive. Everyone in Zimbabwe, including every prisoner, is

entitled to the protection of the rights and freedoms enshrined by the

Constitution: see Conjwayo v Minister of Justice, Legal and Parliamentary Affairs

and Another 1991 (1) ZLR 105 (SC).

52. The position in Zimbabwe is directly analogous to the position arising in the

South African case of S v Makwanyane [1995] ZACC 3. In that case the

Constitutional Court struck down as unconstitutional a sentence of death

imposed under the preceding Constitution, by reference to the new Constitution

introduced in 1993 (see paragraph 4 of the judgment).

53. The Constitutional Court of South Africa was clear: even in cases where the

imposition of the death sentence remained valid under the old law, the carrying

out of those sentences, which were present or future occurrences, must be

determined with reference to the principles of new constitution.

“The prohibition of cruel, inhuman or degrading punishment is applicable to all punishments implemented after the 27th April, and can be invoked to prevent a punishment being carried out even if the punishment was lawful when it was imposed..." [148] (emphasis added)

54. The application of the new constitution to all prisoners on death row once it had

entered into force was again confirmed by the Constitutional Court in Sibiya v

DPP [2005] ZACC 6:

“Some aspects of the judgment and order in Makwanyane must be emphasised. The death penalty was not declared invalid with retrospective effect. The order of this Court was to have prospective effect only. It follows that all death sentences imposed before 6 June 1995



4 January 2016

remained valid sentences. It therefore became necessary for this Court to ensure that death sentences imposed before the date of its order were never executed.” [10]

55. The notion that prisoners in South Africa were somehow deprived of the

protection of the new Constitution because they were sentenced under the

apartheid Constitution would have been inconceivable. It is no less conceivable

that prisoners in Zimbabwe are denied the protection of the new Constitution in

respect of their ongoing sentences.

56. That the Respondents’ position is untenable is evident from consideration of two

scenarios. Suppose that a woman who was on death row when the new

Constitution came into force was now told she would be executed,

notwithstanding the total prohibition on executing women in the new

Constitution (Section 48(2)(d)). The Respondents could hardly suppose that such

execution would be lawful and constitutional, on the basis that the woman was

sentenced under the previous Constitution. Or even more compelling: suppose

that the new Constitution had banned the death penalty in its entirety. One may

hope that the Respondents would not suggest that the Executive was

nonetheless entitled to empty death row after the new Constitution came into

force by hanging all of its occupants.

57. In these circumstances there is no basis for rejecting the present application by

reference to arguments about retrospectivity.



4 January 2016

G. COMPARATIVE CASE LAW

Swazi Jurisprudence

58. After the passage of a new Constitution in 2005, Swaziland courts faced a similar

conflict between its new constitution death sentence laws that now confronts

the courts in Zimbabwe. Section 15 of the Swaziland Constitution – Protection of

right to life – reads:

“(1) A person shall not be deprived of life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Swaziland of which that person has been convicted.

(2) The death penalty shall not be mandatory.”

59. Section 296(1) of the Swaziland Criminal Procedure and Evidence Act, 1938 as

amended, stated:

“Sentence of death by hanging shall be passed by the High Court upon an offender convicted before or by it of murder …

Provided also that where a court is convicting any person of murder is of opinion that there are extenuating circumstances it may impose any sentence other than the death sentence.”

60. In R v Dlamini, the High Court of Swaziland endorsed the applicant’s argument

that “our Constitution being the Supreme Law of Swaziland and taking into

account Section 2(1) of the Constitution of Swaziland Section 29(1) of the Criminal

Procedure and Evidence Act, 1938 is not consistent with the Constitution and as

such it is void to the extent of the inconsistency.”1 The Court thus only invalidated

1 Rex v Musa Kotso Samuel Dlamini [2009] SZHC 151 (29 May 2009). at [38].



4 January 2016

the portion that was in conflict with the Constitution. The death penalty was no

longer mandatory in the absence of extenuating circumstances, but weighing

mitigating and aggravating factors and subsequently imposing the death

sentence remained permissible.

61. In R v Adams, the Supreme Court of Swaziland stated:

“Of course, the death penalty has not been abolished. A trial judge in

murder cases may still impose it but in my view, he must provide good and

substantial reasons why that penalty is imposed.”2

62. What is useful to note however, is that the language in the Swaziland

Constitution is broader and less prescriptive than Section 48 of the Zimbabwe

Constitution. The Swaziland Constitution permits the death penalty: “ in the

execution of the sentence of a court in respect of a criminal offence under the law

of Swaziland...” In other words the legitimacy of the death penalty flows from

the conviction. As the Swazi courts noted, the Constitution did not abolish the

death penalty, but made room for it within new constitutional parameters. On

the other hand, the Zimbabwe Constitution states, “A law may permit the death

penalty to be imposed only on a person convicted of murder…” The difference in

language is significant, in that the Zimbabwe Constitution specifically refers to

there being a law to legitimise the death penalty in accordance with the terms of

the Constitution. In Zimbabwe, the conflict between the old mandatory

sentencing regime and the new discretionary system is so pronounced that the

old laws cannot coexist with the Constitution and thus, that “law” must be a

future law.

2 Rex v Ntokozo Adams [2010] SZSC 10 (30 November 2010), at [32].



4 January 2016

H. THE PREROGATIVE OF MERCY

63. Finally, the Respondents seek to assure the Court that the constitutional

challenge can be rejected because the Applicants have the option of applying for

commutation of their sentences. This is irrelevant to the present application and

in making this submission, the Respondents have failed to recognise a distinction

of fundamental importance to the rule of law. The Applicants are not seeking to

invoke the mercy of the Executive through an application for clemency. They are

seeking a remedy to protect their constitutional rights, to the protection of the

Constitution to which they are entitled under the Constitution, whether the

Executive is inclined to extend mercy or not. And it is to this Court, as the

supreme arbiter and defender of the Constitution, that they turn for protection.

I. Appropriate Remedy

64. Whilst the second Applicant’s sentence of death was confirmed by the Supreme

Court prior to the introduction of the new Constitution and is entitled to have his

sentence commuted to a sentence other than death, the First Applicant, whose

sentence was confirmed on 8 May 2014, after the introduction of the new

constitution on 22 May 2013, is in a different position and, it is submitted, is

entitled to a full re-sentencing hearing.

65. At the confirmation hearing in May 2014, the Supreme Court confirmed the First

Applicant’s sentence of death by reference to the test under section 47 of the

Criminal Code, in other words that a sentence of death must be imposed for



4 January 2016

murder unless there are extenuating circumstances. The Supreme Court applied

what was by then, and is acknowledged to be so by the Respondents, an invalid

an unconstitutional statute to the Applicant’s case. This was in error for three

reasons:

(i) It is plainly unconstitutional for the Supreme Court to confirm a

penalty no longer prescribed by law, in particular one which, under

Zimbabwe’s own standards of humanity and decency, is a breach of

the right to life.

(ii) Where there has been a beneficial change in the law between

sentence and final appeal, it is an implied principle of the right not to

be sentenced to retrospective penalties (sections 70(1)(k) to (n) of the

Zimbabwe Constitution) that an appellant is entitled to receive the

benefit of that change: Scoppola v Italy (No 2), Application no.

10249/03, 17 September 2009: "where there are differences between

the criminal law in force at the time of the commission of the offence

and subsequent criminal laws enacted before a final judgment is

rendered, the courts must apply the law whose provisions are most

favourable to the defendant." [108 and 109]

(iii) The Constitution itself provides for such as course at Schedule 6, Part 4

Section 18(9):

“(9). All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by



4 January 2016

this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but--

a) the procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and

b) the procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution.

10. For the purposes of subparagraph (9)--

a) a criminal case is deemed to have commenced when the accused person pleaded to the charge; …”

66. In this way, the First Applicant is entitled to a remedy from this Court for the

wrong application of the law by the Supreme Court.

67. The distinction to be made between confirmed and unconfirmed sentences of

death is consistent with the reasoning of the South African Constitutional Court

in S v Makwanyane, which held that those appellants whose death sentences

were still unconfirmed at the time of the introduction of the new constitution

were entitled to have their death sentences set aside and the benefit of a full

resentencing hearing ([14] and [23]). By contrast, prisoners who were no longer

in the judicial process were entitled to commutation of sentence only and not to

a full sentencing hearing: see also S v Sibiya.

68. Hence the appropriate remedy in the case of the First Applicant is a re-

sentencing hearing, conducted by the court in the usual manner, where the

Applicant has a right to make representations as to the appropriate punishment

in his case.



4 January 2016

69. The appropriate remedy in the case of the Second Applicant is a commutation of

his sentence to a term of imprisonment so as to prevent prospective

constitutional breach.

70. The Second Applicant invites the Court to take note that he is a party to the

Chawira & Ors v Minister of Justice & Anor, Case No. CCZ47/2015, which is to be

heard by this Court in due course. It is submitted by the Second Applicant that it

would be appropriate for his death sentence be quashed and any substituted

sentence be set after determination of the constitutional claims in that action,

which also seek a remedy for constitutional breach.

CONCLUSION

Under the circumstance in this case, it is therefore respectfully submitted that an order

in terms of the draft should be granted.

DATED AT HARARE ON THIS 4th DAY OF JANUARY 2016.

_______________________TENDAI BITI LAW

Applicants’ Legal PractitionersHMB CHAMBERS

28 Rowland SquareMilton Park

HARARE [TB/om/V5]



4 January 2016

TO: THE REGISTRARConstitutional Court of ZimbabweHARARE

And To: THE ATTORNEY – GENERALRespondents’ Legal PractitionersCIVIL DIVISION OF THEATTONEY-GENERAL’S OFFICE2nd Floor, Block ANew Government ComplexCnr. Samora Machel Avenue/Fourth StreetHARARE [4/JUST/934 TOZ/IM]



4 January 2016

Consolidated... · Web viewIt 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

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