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Supreme Court to decide over law society's constitutional challenge
The Herald (Zimbabwe)
March 28, 2006

THE Supreme Court will in due course decide whether the Law Society of Zimbabwe (LSZ) has a legal right to challenge the constitutionality of some sections of the Criminal Procedure and Evidence Act, on behalf of its members.
The Constitutional bench led by Chief Justice Godfrey Chidyausiku and comprising Justices Misheck Cheda, Vernanda Ziyambi and Luke Malaba, confined the hearing to the preliminary point on whether the legal profession has a legal right to approach the court on its own as an aggrieved party. The LSZ and Minister of Justice, Legal and Parliamentary Affairs Cde Patrick Chinamasa are cited as the applicant and respondent respectively.

The LSZ constitutional challenge filed last year seeks to invalidate the section, which allows the courts to detain suspects for up to 21 days without bail. The court reserved judgment to a later date after hearing arguments by both counsel for the LSZ and the State. The court proposed to decide the issue of locus standi (legal right) first.

"Judgment is reserved. I defer hearing on the merits until a decision is made on issues of locus standi," said Chief Justice Chidyausiku.

If the court rules in favour of the LSZ, then the court would proceed to hear the merits of the case. But if it rules against the society, that would be the end of the matter.

Arguing for the LSZ, Mr Sternford Moyo of Scanlen and Holderness, said the law society was the largest organisation representing lawyers in Zimbabwe. He said it would be "fallacious" to suggest that LSZ had no locus standi in the case involving the interests of legal practitioners.

"The applicant has an obligation to represent the views of the legal profession and to maintain the integrity and status of the legal profession," said Mr Moyo.

"Furthermore it has a duty to consider and deal with all matters affecting the professional interests of the legal profession."

Mr Moyo also argued that the legal profession had interests in the protection of the fundamental rights of the public and due administration of justice. He said when the legal profession was disabled from protecting these rights, its members lose their status as public protectors and custodians of the law. Mr Moyo said the LSZ had received numerous complaints and representations from its members urging it to take action and challenge the statutory provisions, which had a negative impact on their effectiveness, in the area of their operation. The legal profession, he said, had a real substantial interest to give it a legal right to represent its members.

In his counter arguments Chief Law Officer Mr Nelson Mutsonziwa, urged the court to dismiss the case for want of locus standi. Mr Mutsonziwa said the LSZ should not only prove that it had a direct and substantial interest in the case, but it was a requirement of the law that it demonstrated that it had a legal interest.

"The Criminal Procedure and Evidence Amendment Act, deals with, among other things, the liberty of an accused person who would have been arrested for allegedly committing an offence specified under the amendment.

"It does not, in any way, deal with the relationship between applicant's members and accused person," said Mr Mutsonziwa.

He said it was the suspect who is a member of the public, who should raise the concerns as regards the propriety of the statutory instrument and not the LSZ. Mr Mutsonziwa said the LSZ had no basis to argue that the legal profession's effectiveness in delivering their legal services to suspects to which the provisions applied was not in any way being compromised.

"The Legal Practitioners Act prescribes duties and powers of the LSZ and nowhere in the Act does it provide for litigation on behalf of members of the public, who may or may not become clients of its members, It is therefore submitted that the applicant has no cause of action and that the application be dismissed," he argued.

Under the statutory instrument issued in February 2004, police can detain a suspect for 21 days pending application for bail.

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