This is a referral by the High Court for determination
under section 24(2) of the Constitution of Zimbabwe of questions of
alleged violations of the fundamental rights of the applicants guaranteed under
sections 13(1) (right to personal liberty); 15(1) (right not to be subjected to
torture or to inhuman or degrading treatment) and 18(1) (right to the
protection of the law).
The applicants seek the following relief:
1. A declaration that their rights, in terms of sections
13(1), 15(1) and 18(1) of the Constitution have been violated.
2. An order for a permanent stay of the criminal
proceedings before the High Court.
3. An order for mandamus directing
the Attorney General to act in terms of section 76(4a) of the Constitution
of Zimbabwe and investigate the alleged offences committed against the applicants.
4. A special order as to costs.
At the inception of the hearing before this Court, counsel
for the respondent, raised four points in limine. The
most important point, the determination of which disposes of the matter, is
that the referral to the Supreme Court by the High Court, of the questions of
the alleged violations of the rights of the applicants at the stage of the
proceedings in which it was done is prohibited by section 24(3) of the
Constitution.
The point in limine is properly
taken as the referral was incompetent.
The facts are as follows.
It was alleged by the applicants, at their initial remand
hearing before the Magistrates Court, that they were abducted from various
places in Harare, Norton and Masvingo, between 25 November 2008 and 13 December
2008 by members of the State security agency. The applicants alleged that they
were taken to a secret detention centre, which they later found out to be
Goromonzi Prison, where they were kept incommunicado until 22 December 2008.
They were allegedly denied access to families, legal counsel, and medical
treatment for injuries sustained as a result of torture inflicted by the
abductors.
For the purposes of this judgment, the following are the
facts which appear from the affidavits of all the applicants:
1. The modus operandi used
in the alleged abductions is that each applicant had hands handcuffed behind
his back, blindfolded and driven around to disorientate. They were all
detained at Goromonzi Prison.
2. The applicants were released from illegal detention on
22 December 2008 into the custody of the police and detained at various police
stations.
3. The alleged abductors tried to conceal the location of
their detention centre.
4. Statements were recorded from the applicants on 22 and
23 December 2008 in the absence of their legal representatives.
5. All the applicants were blindfolded when handed over to
police stations on 22 December 2008 and when taken to record statements on 22
and 23 December 2008, in a bid to prevent them from seeing their abductors.
On 29 December 2008, the applicants were taken to Rotten
Row Magistrates' Court for initial remand. They were each charged with
insurgency, banditry, sabotage or terrorism, in contravention of section
23(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Chapter
9:23] (“the Criminal Code”), alternatively, malicious damage to property, in
contravention of section 140 of the Criminal Code. Medical affidavits
from two doctors who examined the applicants while in custody were produced to
the court a quo. The reports were to the
effect that the applicants had evidence of healed bodily injuries consistent
with torture. They also exhibited clinical symptoms of psychological
trauma.
The magistrate ordered an investigation into the
allegations of abduction and torture.
Senior Assistant Commissioner Nyathi tendered his report to
the court on 21 January 2009. On the same day, the then Minister of State
Security in the President's office, deposed to an affidavit in terms of section 296
of the Criminal Procedure and Evidence Act [Chapter 9:07]. He declined to
disclose the places where the applicants had been detained and identities of
State security agents involved in the investigation of the allegations against
the applicants. The Minister denied that State security agents were involved in
the alleged abduction, torture or illegal detention of the applicants admitting
only that they were involved in investigating them for the alleged commission
of the offences with which they were charged.
It is common cause that the applicants challenged the
application by the State to have them placed on remand. They raised, at
that stage, the question of their detention as a violation of their fundamental
right to personal liberty. They did not request the magistrate to refer
any such question to the Supreme Court for determination. The magistrate
granted the application by the State and placed the applicants on remand on the
ground that there was a reasonable suspicion that they had committed the
offences with which they were charged. If the applicants were of the view
that the decision to place them on remand was a violation of their fundamental
right to the protection of the law they could, as an exceptional remedy, have
made that allegation in an application to the Supreme Court for redress in
terms of section 24(1) of the Constitution had they requested before the
decision to remand them was made that the question of violation of their right
to personal liberty be referred to the Supreme Court for determination and that
request had been refused on the ground that the raising of the question was
frivolous and vexatious. The Supreme Court would then have decided whether
the decision to place the applicants on remand was a violation of their right
to the protection of the law under section 18(1) of the Constitution. They
did not invoke the provisions of section 24(2) of the Constitution at the time
they ought to have done. The applicants accepted the legality of the
decision to place them on remand on the basis of which they were arraigned
before the High Court in July 2009.
Prima facie, in finding
that there was reasonable suspicion that the applicants committed the offences
with which they were charged, the magistrate did not violate the applicants'
right to personal liberty.
On 25 February 2009, the High Court held, in cases HC42/09
and HC147/09, on review, that the decision of the magistrate to place the
applicants on remand was based on a proper application of the principle and
finding on the facts that there was a reasonable suspicion that the applicants
had committed the offences of which they were charged.
It is clear that section 24(2) of the Constitution was
designed to enable the Supreme Court to adjudicate and consider the question
whether there has been, or there is likely to be, a contravention of the
Declaration of Rights, as a court of first instance exercising original
jurisdiction.
Section 24(2) of the Constitution provides that:
“(2) If in any proceedings in the High
Court or in any court subordinate to the High Court any question arises as to
the contravention of the Declaration of Rights, the person presiding in that
court may, and if so requested by any party to the proceedings shall, refer the
question to the Supreme Court unless, in his opinion, the raising of the
question is merely frivolous or vexatious.”
Counsel for the respondent argued that what was required of
the applicants was the raising of a question of a contravention of the
Declaration of Rights and a request that the presiding magistrate refer the
question to the Supreme Court for determination. In this case, the
question was raised before the magistrate at the initial remand without a
request that it be referred to the Supreme Court for determination.
Once the decision to remand the applicants was made on the
ground that there was a reasonable suspicion of their having committed the
offences with which they were charged, and that position still prevailed at the
time they appeared in the High Court for trial, the prosecution could not be
stopped on the basis that they had been tortured or subjected to inhuman or
degrading treatment.
There was no legal basis on which the trial judge could
refer the questions of contraventions of sections 13(1), 15(1) and 18(1) of the
Constitution to the Supreme Court for determination under section 24(2) of the
Constitution because the question of the existence of a reasonable suspicion of
the applicants having committed the offences with which they were charged had
already been determined justifying their arraignment before the High
Court. The High Court could not turn the proceedings before it into an
inquiry into the correctness or otherwise of the decision of the Magistrates
Court to place the applicants on remand. It could not seek to have the
correctness of that decision impugned through the procedure under section 24(2)
of the Constitution because the Supreme Court would no longer be exercising
original jurisdiction in the circumstances. The court would not be
determining the question of violation of the right to personal liberty but
reviewing the decision of the Magistrates Court.
Section 24(3) of the Constitution provides that:
“(3) Where, in
any proceedings, such as are mentioned in subsection (2) any such question as
is therein mentioned is not referred to the Supreme Court, then, without
prejudice to the right to raise that question on any appeal from the
determination of the court in those proceedings, no application for the
determination of that question shall lie to the Supreme Court under subsection
(1).”
The procedure adopted by the High Court in this case had
the effect of interrupting the criminal proceedings before determination which,
in a criminal case, is when the accused is convicted and the final sentence
delivered. The decision on the question whether there was a reasonable
suspicion of the applicants having committed the offences they were charged
with to justify placing them on remand had been made by a court of competent
jurisdiction, and, in the absence of a request that the question whether
placing them on remand was likely to violate their right to personal liberty be
referred to it for determination, the Supreme Court could not be prevailed
upon to exercise its original jurisdiction on the question of the contravention
of sections 13(1) and 15(1) of the Constitution.
The case of Muchero & Anor v Attorney
General 2000 (2) ZLR 286 (SC) is apposite.
The facts were that the applicants, who were on bail on
allegations of fraud and corruption, challenged the right of the State to
continue to remand them for trial and applied for their removal from remand on
the grounds that no reasonable suspicion existed that they had committed an
offence, as required by section 13(2)(e) of the Constitution. Having heard
evidence, the magistrate refused the application. The applicants' counsel
requested that the question of whether section 13(2)(e) of the
Constitution had been contravened be referred to the Supreme Court under section
24(2) of the Constitution. The matter was referred to the Supreme Court.
The headnote reads:
“The referral was incompetent. It should have been
requested before the magistrate rendered a decision. Once he had made a
decision, the matter could only be dealt with by way of appeal or review,”….,.
In this case, there was no request for a referral of the
question that placing the applicants on remand was likely to violate their
right to personal liberty protected by section 13(1) of the Constitution before
the decision was made by the magistrate to remand them on the ground that there
was a reasonable suspicion of their having committed the offences with which
they were charged. The magistrate made the decision to remand the
applicants for trial notwithstanding the question of the alleged violation of
their right to personal liberty having been raised because there was no request
for a referral. The question was therefore not referred and the decision
of the magistrate, on review, was found to have been consistent with the
factors the court was required to consider under section 13(2)(e) of the
Constitution.
Section 24(3) of the Constitution applied to the
proceedings.
In Jestina Mungarewa Mukoko v
Commissioner General of Police & 4 Ors SC03-09, CHIDYAUSIKU
CJ …, said:
“Section 24 of
the Constitution is peremptory. This court has no discretion to condone a
departure from compliance with s 24 of the Constitution. Consequently, failure
to comply with the procedure set out in s 24 of the Constitution is fatal to
any Court application made in terms thereof.”
The learned CHIEF JUSTICE went on to say at p3:
”Thus, when a
matter is before the High Court or any court subordinate to the High Court,
such as the magistrates court in this case, the question of the contravention
of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to
the proceedings.”
Section 24(2) of the Constitution clearly precludes a
situation where the question is referred to the Supreme Court in respect of a
matter which is no longer necessary for resolution by the lower court in the
determination of the dispute before it. If that were to be permitted it
would mean that the Supreme Court would not be rendering a decision on the
question as a court of first instance in the exercise of original jurisdiction.
It was no longer necessary for the High Court to place the applicants on remand,
and, ipso facto, to consider whether or not
placing them on remand was likely to violate their right to personal liberty, the
decision to place the applicants on remand, having already been made by the
Magistrates Court. The applicants were before the High Court for trial on the
basis of the decision that there was a reasonable suspicion of their having
committed the offences with which they were charged.
Accordingly, the matter is struck off the roll
with no order as to costs.
