CHAWIRA & ORS v MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS & ORS

CONSTITUTIONAL COURT, HARARE

[Opposed Application CCZ 3-17]

January 13, 2016 and March 20, 2017

MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE, GOWORA, HLATSHWAYO,
PATEL, BHUNU AND UCHENA JJCC

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of rights – Sections 51 and 53 – Right to human dignity – Freedom from torture or cruel, inhuman or degrading treatment or punishment – Delay in executing death sentence – Whether such a delay can be an infringement of such rights
– Exhaustion of other remedies before seeking constitutional remedies
– Doctrine of ripeness and constitutional avoidance.

All applicants were on death row. They brought an application under s 85 of the Constitution of Zimbabwe, 2013 seeking an order quashing their death sentences and remitting their cases to the High Court for a determination of an appropriate substituted sentence. The basis of their application was that there had been an inordinate delay in the carrying out of their death sentences. The applicants had not previously sought review by the High Court of the prison conditions that they complained about. Some of the applicants’ appeals against the death sentence had not been finalised by the Supreme Court. None of the applicants’ cases had been considered by the President under his powers of pardon.

Held, that the application was not ripe for a determination of the constitutional issues raised because the applicants had not exhausted available alternative remedies such as review by the High Court, appeal to the Supreme Court and the presidential pardon.

Cases cited:

Catholic Commission for Justice and Peace in Zimbabwe v
Attorney-General & Ors
1993 (1) ZLR 242 (S), distinguished

Chikusvu v Magistrate Mahwe HH 100-15 (unreported), referred to

Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36 (H),
referred to

Sports & Recreation Commission v Sagittarius Wrestling Club & Anor 2001 (2) ZLR 501 (S), referred to

Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC);
1995 (10) BCLR 1424; [1995] ZACC 9, referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 48, 48 (2)(e), 51, 53, 70 (5)(b),
85 (1)(a), 85 (1)(d), 167

Administrative Justice Act [Chapter 10:28]

T Biti, for the applicants

O Zvedi, for the respondents

BHUNU JCC:

This matter was heard on 13 January 2016 with judgment being reserved. On 27 January 2016 this Court determined that in view of the fact that this case raises similar issues as that of Farai Lawrence Ndlovu & Anor v
The Minister of Justice, Legal & Parliamentary Affairs
Constitutional Application No. 50 of 2015, it was convenient that the two cases be consolidated and heard simultaneously. To that extent the court issued the following order:

“IT IS ORDERED THAT:

The matter be and is hereby postponed sine die to enable this case to be heard by the same bench that heard the matter of Cuthbert Chawira & Ors vs Minister of Justice CCZ 47/2015. The Registrar is directed to set this matter at the earliest convenient date for hearing.”

In view of the above directive the handing down of judgment in this case was postponed pending the completion of case no. CCZ 50/15. The matter however dragged on and on until it was eventually struck of the roll on
1 January 2017 thereby paving way for the completion and delivery of judgment in this case.

The application is in terms of s 85 (1)(a) and (d) of the Constitution of Zimbabwe, 2013 (“the Constitution”) which entitles both natural and juristic subjects to approach this Court for relief as a court of first instance whenever their fundamental human rights enshrined in Chapter 4 have been infringed or threatened.

All the 15 applicants are condemned prisoners on death row awaiting execution after being sentenced to death by the High Court. They have been on death row for varying periods of time ranging from 2 to 18 years of incarceration.

They have now approached this Court complaining that the length of their stay on death row is an affront to their human dignity and freedom from torture or cruel, inhuman or degrading treatment or punishment in violation of ss 51 and 53 of the Constitution.

Section 51 provides that:

“51 Right to human dignity

Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected.”

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