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criminal code invalid: appeal
The Zimbabwe Independent
September 22, 2006
criminal code is invalid as it ousts the Roman-Dutch law prescribed
by the constitution, a constitutional appeal lodged with the Supreme
Court this week argues.
that may have far-reaching consequences for the administration of
justice in the country, seeks to set aside a conviction and subsequent
release from prison of a person jailed under the Criminal
Law (Codification and Reform) Act on grounds that it is unconstitutional.
The Act, which
became operational in July, stipulates that the Roman-Dutch criminal
law "shall no longer apply within Zimbabwe to the extent that this
code expressly or impliedly enacts, re-enacts, amends, modifies
or repeals that law".
who is doing time at Chikurubi prison after being sentenced to an
effective two years in jail in a corruption-related case, filed
the application on Wednesday through Harare lawyer Lewis Uriri of
Honey & Blackenberg. Attorney-General Sobusa Gula-Ndebele and
Justice minister Patrick Chinamasa are the respondents.
In her founding
affidavit, Mahwire said whereas Section 89 of the constitution says
the Roman Dutch law is the one that is in force in Zimbabwe, Section
3 of the Criminal Law (Codification and Reform) Act says the former
no longer applies and as a result repeals it.
it was not possible for an Act of Parliament to repeal a section
of the constitution, as this has to be done through a constitutional
affidavit reads: "Section 3 of the Criminal Code purports to wholly
do away with the Roman-Dutch law and to replace it with provisions
of the criminal code.
"In so doing
parliament acted unlawfully and outside the parameters of Section
89 of the constitution. Parliament’s illegitimate baby cannot be
saved. It is unconstitutional and as such of no force or effect,"
that if the act is found to be unconstitutional she must be released
"I further pray
that in remedying the breach, this court may be pleased to set aside
the whole process leading to and including my conviction and sentence
and that I forthwith be released from prison," she said.
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