Before:
MALABA CJ, In Chambers
This
is a chamber application for an order for direct access to the
Constitutional Court (“the Court”) made in terms of Rule 21(2) of
the Constitutional Court Rules SI 61/2016 (“the Rules”).
FACTUAL
BACKGROUND
“(10)
An Act of Parliament must provide for the appointment of a board to
employ persons to assist the Prosecutor-General in the exercise of
his or her functions, and must also provide —
(a)
for the qualifications of those persons;
(b)
for the conditions of service, conduct and discipline of those
persons;
(c)
that in exercising their functions, those persons must be independent
and impartial and subject only to the law and to the direction and
control of the Prosecutor-General;
(d)
for the structure and organisation of the National Prosecuting
Authority; and
(e)
generally, for the efficient performance and well-being of the
National Prosecuting Authority.”
Sections
260 and 261 of the Constitution entrench the independence of the
Prosecutor-General and officers of the NPA. They
provide:
“260
Independence of Prosecutor-General
(1)
Subject to this Constitution, the Prosecutor-General —
(a)
is independent and is not subject to the direction or control of
anyone; and
(b)
must exercise his or her functions impartially and without fear,
favour, prejudice or bias.
(2)
The Prosecutor-General must formulate and publicly disclose the
general principles by which he or she decides whether and how to
institute and conduct criminal proceedings.
261
Conduct of officers of National Prosecuting Authority
(1)
The Prosecutor-General and officers of the National Prosecuting
Authority must act in accordance with this Constitution and the law.
(2)
No officer of the National Prosecuting Authority may, in the exercise
of his or her functions —
(a)
act in a partisan manner;
(b)
further the interests of any political party or cause;
(c)
prejudice the lawful interests of any political party or cause; or
(d)
violate the fundamental rights or freedoms of any person.
(3)
Officers of the National Prosecuting Authority must not be active
members or office-bearers of any political party or organisation.
(4)
An Act of Parliament may make further provision to ensure the
political neutrality of officers of the National Prosecuting
Authority.”
While
the authority to prosecute was given in terms of section 259 of the
Constitution, as appears ex
facie
the heading of the letter granting authority, section 259 does not
make specific reference to granting of authority to prosecute by the
Prosecutor-General. Section 259(10) of the Constitution leaves the
details of the powers of appointment of officers to assist the
Prosecutor-General in the exercise of his or her
functions
to an Act of Parliament. The Act of Parliament required by section
259(10) of the Constitution is the National Prosecuting Authority Act
[Chapter
07:20]
(“the Act), the preamble to which makes reference to sections 258
to 263 of the Constitution and seeks to give effect to them.
Section
27 of the Act gives the Prosecutor-General power to engage any person
with the relevant qualifications to perform services for the NPA in
specified cases. It provides:
“27
Engagement of persons to perform services in specific cases
(1)
The Prosecutor-General may, in consultation with the Minister, engage
under agreement in writing any person having suitable qualifications
and experience to perform services for the Authority in specific
cases.
(2)
The terms and conditions of service of a person engaged under
subsection (1) shall be determined from time to time by the Minister
in consultation with the Minister responsible for finance.”
Section
5(2) of the CP&E Act
more
specifically authorises the Prosecutor-General to grant prosecutorial
authority to any legal practitioner with the requisite
qualifications. It provides:
“5
Delegation of functions by Prosecutor-General
Mr
Uladi
submitted that the application was not properly before the Court. He
argued that the applicant did not cite the President, whom he alleged
made the appointments of the third and fourth respondents. The
second, third and fourth
respondents
denied that the appointments were made by the President. They averred
that the appointments were made by the Prosecutor-General, who issued
certificates of authority to prosecute on his behalf. He submitted
that the authority to prosecute was lawfully given as the conduct of
the Prosecutor-General was within the terms of section 5(2) of the
CP&E Act. In his view, the fact that the third and fourth
respondents were members of the Unit did not disqualify them from
being appointed as prosecutors. Mr Uladi
argued that the law authorised the Prosecutor-General to appoint a
legal practitioner to conduct a
prosecution
on his behalf. The authority was not limited to legal practitioners
employed in specific institutions.
A
constitutional matter, as defined in section 332 of the Constitution,
must arise or be raised in the proceedings in the subordinate court.
The person presiding may, if he or she is of the view that the
determination of the constitutional issue by the Court is necessary
for the purposes of the proceedings before him or her, mero
motu
refer the matter to the Court. If the matter is raised by any party
to the proceedings, there must be a request by that party or any
other party that the matter be referred to the Court for
determination.
If
the presiding person is of the view that the determination of the
constitutional matter by the Court is necessary for the purposes of
the proceedings and that the request for a referral is not frivolous
or vexatious, he or she is obliged to refer the matter to the Court
for determination. If the presiding person is of the opinion that the
request for a referral is frivolous or vexatious, he or she shall
refuse the request.
There
must be a moment in the procedure set out in section 175(4) of the
Constitution when the presiding person must address his or her mind
to factors that answer a number of questions, such as whether what is
raised is a constitutional question, whether the request to refer the
matter to the Court is frivolous or vexatious, and whether the
determination by the Court is necessary for the purpose of the
proceedings before him or her. There must be evidence that a request
for a referral of a constitutional matter to the Court was made to
the presiding person.
It
is not compliance with the requirements of the procedure of referral
of a constitutional matter to the Court prescribed under section
175(4) of the Constitution to say the constitutional question was
raised and the presiding person declined to refer it to the Court.
The reason is that it is the request to refer a constitutional
question to the Court which must have been found to be frivolous or
vexatious. It is not the constitutional matter itself that has to be
found to be frivolous or vexatious.
The
reasons for approaching the Court set out in the applicant's
founding affidavit do not make mention of a request for referral
being made to the court a
quo.
In para 8 of the applicant's founding affidavit the applicant
stated that:
An
application for leave for direct access to the Court on an
application in terms of section 85(1) of the Constitution, alleging
that the refusal by a presiding person to refer a constitutional
matter is a violation of a fundamental right enshrined in Chapter
4,
must comply with the requirements of section 175(4) of the
Constitution.
An
applicant for leave for direct access to the Court who seeks relief
on the ground that the refusal by the presiding person to refer a
matter is a violation of his or her or its fundamental right or
freedom must show compliance on his or her or its part with the
requirements of section 175(4) of the Constitution in the proceedings
before the court a
quo.
The
applicant accepts that the court a
quo
decided that the constitutional questions raised were frivolous and
vexatious. According to him, the decision violated his right to equal
protection of the law in terms of section 56(1) of the Constitution.
The applicant does not take issue with the fact that the court a
quo
did not determine the question whether the “request” for referral
of the constitutional questions, if it was made, was frivolous or
vexatious.
The
case intended to be placed before the Court in terms of section 85(1)
of the Constitution is that the decision by the court a
quo
that the constitutional questions were frivolous and vexatious
violated the applicant's right to equal protection of the law. The
allegation is that the decision was made in the context of section
175(4) of the Constitution. For the right of access to the Court
under section 85(1) of the Constitution to achieve the intended
purpose, it must be shown that in the exercise of its power the court
a
quo
violated the applicant's right to equal protection under section
175(4) of the Constitution.
What
is clear from the papers is the fact that the court a
quo
did not proceed in terms of section 175(4) of the Constitution. The
court a
quo
decided the constitutional questions on the merits. The record of
proceedings shows that the court a
quo
addressed its mind to the issue of the legality of the authority to
prosecute given to the third and fourth respondents forming the
subject of the constitutional questions. The court a
quo
decided that the authority to prosecute given to the third and fourth
respondents was lawful, as it fell within the terms of section 5(2)
of the CP&E Act.
The
controversy between the parties arising from the question of the
legality of the authority given to the third and fourth respondents
terminated with the decision that gave victory to the
Prosecutor-General.
There
was no consideration of the question whether a request for a referral
of the constitutional questions raised by the applicant was frivolous
or vexatious.
The
jurisdiction of a subordinate court under section 175(4) of the
Constitution is mandatory and especially focused, in that it has to
be exercised in respect of a specific question whether a request for
a referral of a constitutional matter to the Court is merely
frivolous or vexatious. At the time the decision is made, the
subordinate court must be engaged with the question.
In
this case, the evidence shows that the court a
quo
was not engaged with that question. It was, instead, engaged with the
question whether the authority to prosecute was lawfully given to the
third and fourth respondents. It looked at the merits of the question
and decided that the authority to prosecute was lawfully given in
terms of section 5(2) of the CP&E Act.
The
purpose of the exercise of the jurisdiction of a subordinate court
under section 175(4) of the Constitution is to protect the process of
the Court against frivolous or vexatious litigation. Section 175(4)
of the Constitution does not authorise a subordinate court to
determine the constitutional matter on the merits. If the subordinate
court exercises its general power to determine the constitutional
matter on the merits, it does so on the basis of some other law, not
section 175(4) of the Constitution. The determination of a
constitutional question by a subordinate court is of itself a
judicial protection, unless the court has no jurisdiction over the
matter. The remedy for the enforcement of the law prescribing the
standard of jurisdiction is the appeal.
A
determination by a subordinate court of a constitutional matter on
the merits cannot be taken as a failure to provide the applicant with
the
judicial
protection provided under section 175(4) of the Constitution. The
determination of a constitutional matter on the merits cannot provide
a ground for approaching the Court, alleging a violation of the right
to equal protection of the law. Section 175(4) of the Constitution
applies to cases where the constitutional matter raised is to be
decided upon by the Court.
The
subordinate court decides the question whether a request to refer the
constitutional question to the Court is merely frivolous or
vexatious. Once the subordinate court decides the constitutional
question on the merits, section 175(4) of the Constitution ceases to
be applicable. In other words, the alleged violation of the right to
equal protection of the law, forming the ground on which the
substantive application is intended to be filed with the Court in
terms of section 85(1) of the Constitution should leave for direct
access be granted, cannot, in the circumstances, be based on alleged
failure to act in terms of section 175(4) of the Constitution.
The
court a
quo
could not have addressed its mind to the question whether a request
for referral of the constitutional questions was merely frivolous or
vexatious after determining the constitutional questions itself.
There
is a discordance between what happened and the relief sought. The
relief sought is based on the allegation that there was refusal by
the court a
quo
to refer the constitutional questions to the Court. There was no
refusal. There was a determination of the constitutional questions on
the merits. The decision terminated the controversy between the
parties on the question whether the authority to prosecute was
lawfully given to the third and fourth respondents, by giving victory
to the Prosecutor-General. The applicant was bound by the decision of
the court a
quo
and had to stand trial.
The
Court can only exercise its jurisdiction to interpret, protect and
enforce the Constitution in respect of matters that reach it from
lower courts through the procedures prescribed by the Constitution
and given effect to by the relevant provisions of the Rules. The
substantive and procedural requirements of the relevant
constitutional provisions must be complied with. It must be shown
that the matter sought to be brought before the Court for
determination falls within the ambit of matters for which the
constitutional provisions invoked were designed.
The
applicant invoked a wrong remedy in a bid to redress the decision of
the court a
quo
on the constitutional questions he raised in the criminal proceedings
in that court.
In
Mutero
and Anor
v Attorney-General
2000 (2) ZLR 286 (S), it was held that it was incompetent for the
court a
quo
to consider the issue of frivolity or vexatiousness of a request for
a referral of a constitutional matter to the Court when it had
already determined the question on the merits. It was held that once
a subordinate court rendered a decision on the constitutional
question, the dispute arising therefrom could only be resolved by way
of appeal.
If
the applicant was of the view that the decision by the court a
quo
was wrong, he had the remedy of appeal for the redress of the
decision. A wrong judicial decision does not, however, give rise to a
ground for an alleged violation of the right to equal protection of
the law. No law provides protection to a litigant against the
possibility of a judicial officer making a wrong decision.
DISPOSITION
In
the result, it is ordered as follows:
“The
application be and is hereby dismissed with no order as to costs.”
UCHENA
JCC: I
agree
MAKONI
JCC: I
agree
Muzangaza,
Mandaza and Tomana,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
first respondent's legal practitioners
National
Prosecuting Authority,
second, third and fourth respondents' legal practitioners
