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Supreme Court cases - Court Watch 18/2012
October 07, 2012
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.
President v The Prime Minister – the Provincial Governors
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]
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.
Supreme Court Cases
v Ncube – MDC Leadership Dispute: Hearing Delayed
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.]
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.
Member’s Bills case postponed: Minister Chombo v Parliament
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
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.
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.
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.
and Others v The State: Pre-Trial Mistreatment of Accused Persons
covered in Court
Watch 3/2011, 9/2012,
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.
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.
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
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
of speech case – Prosecution for insulting the President
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.
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.
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.
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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