In this application, referred to this court pursuant to the
provisions of section 175(4) of the Constitution, the applicant seeks the
following order:
1. It is declared that the prosecution of the applicant,
Jabulani Sibanda, in respect of his address to war veterans and others at
Herbert Mine, Mutasa District, on 27 October 2014 is unlawful in that it is in
violation of sections 60 and 61 of the Constitution of Zimbabwe.
2. No propagation and expression of one's ideas and
opinions should be subjected to prosecution under section 33(2)(b) of the
Criminal Law (Codification and Reform) Act.
3. That the court issues such order as it deems appropriate
in terms of its powers under section 175 of the Constitution.
In heads of argument filed with this court, the State has
taken the preliminary point that the matter was not properly referred by the
court a quo.
After hearing submissions from both counsel, this court
reserved judgment on the preliminary point raised and postponed the hearing of
the matter on the merits.
FACTUAL BACKGROUND
The applicant was the chairperson of the War Veterans Association
at the time of the alleged commission of the offence. On 27 October 2014, he
addressed a gathering of war veterans at Herbert Mine in the Mutasa District of
Manicaland Province. The war veterans had gathered at the mine shaft to exhume
the bodies of deceased war veterans and thereafter re-bury them.
It is alleged by the State that at about 14:00 hours on
that day, the applicant, in a lengthy speech, uttered words to the effect that
the President of Zimbabwe and his wife were plotting a bedroom coup to remove
the State Vice-President from both the party and Government and replace her
with Dr Grace Mugabe, the President's wife. He was quoted as further saying
that power “was not sexually transmitted” and that he was going to mobilise
youth, women and war veterans to march to State House and confront the
President of Zimbabwe.
The applicant denies making these utterances.
On a date that is either 30 November 2014 or
1 December 2014, the applicant appeared before the court of a
Provincial Magistrate at Harare Magistrates' Court facing a charge of
contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. More specifically, it was alleged by the State that in uttering
the words in question he had insulted the office and person of the President.
During the initial remand proceedings, the applicant's
lawyer…, made two applications, one for bail pending trial and another for the
referral of the matter to the Constitutional Court.
The application for bail merits no further comment as it is
not germane to the determination of the issues that arise in the present
application.
PROCEEDINGS IN THE
COURT A QUO
Counsel for the applicant requested the court to refer the
matter to this Court. The request was from the bar. No written application was
filed. The applicant was not called to give evidence. He did not file an
affidavit in support of the request. There was no specific indication how, in
the particular case of the applicant, section 33 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] infringed his Constitutional
rights. Counsel for the applicant addressed the court thus:
“I request the court, in terms of section 175 of the
Constitution to refer this matter to the Constitutional Court on the grounds that:
(1) It is humbly submitted that the charge presented by the
State contravening (sic) section 33(2)(b) of the Code of insulting or
undermining authority of the President has the effect of infringing on the
rights of the accused person. The rights are fundamental rights. These rights
are enshrined in section 60 of the Constitution which deals with freedom of
conscience, which, at 60(1)(a) (sic), include freedom of thoughts (sic),
opinion and section 61 of the Constitution deals with freedom of expression and
freedom of the media. Every person has the right to freedom of expression which
includes;
(a) Freedom to seek, receive, and communicate ideas and
other information.
I concede that this is not the first time the issue has
been raised in these courts. I am aware of 3 cases brought to the courts
challenging this very section of the Code.
I refer you to the case of Owen Maseko v the Attorney
General. The State withdrew the case…,. The State conceded that the provisions
are not proper. The provisions contravene the Constitution.
May the court refer to Constitutional Court.”
The State prosecutor opposed the application.
He urged the court to dismiss the request and to proceed
with “the remand issues.” He said nothing about the factual dispute; whether or
not the applicant had indeed uttered the words alleged. Nor did he comment on
the validity of the charge, viz section 33(2)(b) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] in the light of the provisions of
sections 60 and 61 of the Constitution.
The court a quo determined that the “application” should be
referred to the Constitutional Court, it being not frivolous or vexatious. The
court then referred the matter to this court, hence the present proceedings.
SUBMISSIONS BY THE
RESPONDENT
Both in heads of argument and oral submissions, the State
raised the preliminary point that the matter had not been properly referred to
this court. It further made the following submissions;
(i) The applicant should have been called to give viva voce
evidence.
(ii) It was insufficient for the applicant's counsel to
tender a very short and generalised submission on the legal provisions without
first establishing a factual basis for such argument.
(iii) Further, the trial magistrate does not appear to have
appreciated the need to establish the facts and the constitutional issue that
arose from those facts before deciding to refer the matter.
SUBMISSIONS BY THE
APPLICANT
In his submissions, counsel for applicant argued that there
was no compelling reason to lead evidence.
What was in issue was the constitutionality of section 33(2)(b) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was in respect of
the constitutionality of the section that he had addressed the court a quo.
ISSUES FOR
DETERMINATION
Two issues therefore fall to be decided by this court. These
are;
(i) Firstly, whether the applicant should have given viva
voce evidence, and, if he did not, whether his request is, for that reason
alone, fatally defective.
(ii) Secondly, whether the magistrate a quo properly
referred this matter to this court.
WHETHER APPLICANT
SHOULD HAVE ADDUCED EVIDENCE
The first question that arises is whether the failure by
the applicant to lead evidence in support of the application is fatal.
It is correct, as the respondent points out, that in
various decisions, this court has stressed the need for an applicant seeking a
referral, to lead viva voce evidence in support thereof, and for the
prosecution to be given the opportunity, not only to cross examine witnesses
called by the applicant to give evidence, but also to lead evidence in
rebuttal. Indeed, cases such as S v Njobvu
2007 (1) ZLR 66; S v Banga 1995 (2) ZLR 297; Sivako v AG 1999 (2) ZLR 279;
and, more recently, Douglas Mwonzora & 31 Others v The State CC09-15,
stress this point.
These cases, however, were decided in the context of an
application for a permanent stay of criminal proceedings. In such an
application, an applicant has to traverse various factors such as the length of
the delay, the reasons for such delay, the question of prejudice in the conduct
of the trial and whether the applicant asserted his right to a speedy trial.
In Mutsinze v Attorney General of Zimbabwe CC13-15, this court went further to look at
other considerations such as the interest of society in having persons alleged
to have committed criminal offences tried and a verdict given, the general
principle that a permanent stay is granted only in very limited circumstances
where the court does not want to involve itself in an illegality and that,
where a record of proceedings goes missing in very suspicious circumstances,
there is need for such record to be reconstructed. Further, that it is in very
rare cases that a permanent stay would be granted owing to the disappearance of
a court record.
For the above factors to be properly considered by a court,
evidence will, almost invariably, be required.
Questions such as whether the applicant asserted his right to a speedy
trial and whether he has suffered prejudice in the conduct of his case will, no
doubt, require viva voce evidence and cross-examination, before they can be
determined.
The present case is different.
The applicant is alleged to have made certain remarks,
which remarks offend the provisions of section 33(2)(b) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. The applicant, however, denies
making those remarks. That notwithstanding, the applicant is saying that the
section under which he was charged is not constitutional. He did not give
evidence on the circumstances surrounding his arrest, whether the words he is
alleged to have uttered are correct and what constitutional issue arises from
his arrest and remand.
Section 24 of the Constitutional Court Rules, 2016 has made
provision for the procedure to be followed in referrals of matters to this
court, whether by a court mero motu or at the request of a party to the
proceedings. Rule 24(4) thereof further provides that where there are factual
issues involved, the court seized with the matter shall hear evidence from the
parties and determine those factual issues. Where there are no disputes of
fact, the parties are required to prepare a Statement of Agreed Facts. Further,
the record of the proceedings is required to contain evidence led by both
parties and the specific findings of fact made by the judicial officer and the
issue or question for determination by this court.
The Constitutional Court Rules, 2016 were promulgated on 10
June 2016.
The decision to refer this matter to this court was made on
16 March 2016 i.e. just over three months before the Rules came into operation.
The promulgation of the Rules has not brought into
existence new requirements. The Rules have simply incorporated various
sentiments expressed by this court in various cases that have come before it.
In my view, notwithstanding that there were no Rules in
operation at the time the request for referral was made, and, notwithstanding
the fact that the cases cited by the respondent refer to instances where a
permanent stay is sought, there is need, in general terms, in applications for
a referral to this court, for an applicant to give evidence on the
circumstances surrounding his arrest and why he alleges that his arrest on a
particular charge contravenes a particular right given to him by the
Constitution. The trial magistrate before whom the application is made must be
afforded all the information necessary so that he is in a position to
determine, firstly, the factual position giving rise to the request for
referral and thereafter, whether the facts give rise to a constitutional
question, and, importantly, what the constitutional question is that should be
referred to this court.
I readily accept that there are cases where the leading of
evidence will not be necessary, particularly where the facts giving rise to the
request are common cause. In such a case, it would serve no meaningful purpose
for the parties to be required to give viva voce evidence. Where, however, the
facts are not common cause, the parties must, as a general rule, be required to
give evidence.
In the particular circumstances of this case, my considered
view is that it was not, strictly speaking, necessary for the applicant to give
evidence. The facts giving rise to the request for referral were not in
dispute. His legal practitioner appears to have been simply saying his
prosecution on a charge of contravening section 33(2)(b) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] was violative of his rights under
sections 60 and 61 of the Constitution.
I have used the word “appears” deliberately as counsel for
the applicant was not very clear on this aspect when he addressed the court a
quo - an aspect I deal with next.
WHETHER THE COURT A QUO
PROPERLY REFERRED THE MATTER
The second question is whether the court a quo properly
referred the matter to this court. It is apparent from the record of the
proceedings that the request made by counsel for the applicant was unclear. He
submitted that “the charge presented by the State contravening s 33(2)(b) of
the Code infringed on the fundamental rights of the accused person.” It is not
clear from the record exactly what he was referring to. Was he saying the charge contravened section
33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]? Or
was he saying the charge of contravening section 33(2)(b) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] infringed his fundamental
rights?
No one can say for sure.
In case it was the latter, counsel for the applicant did
not indicate how, in the case of the applicant, section 33(2)(b) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] violated his
fundamental rights. The presiding Magistrate did not help matters by not
specifically indicating, in his reasons for referral, what he understood the
request to be.
In deciding to refer the matter to the Constitutional
Court, the trial magistrate reasoned thus:
“I will now turn to the issue of the referral of the matter
to the Constitutional Court. Mr Sobusa Gula-Ndebele, for the defence, cited 3
cases of a similar nature. My comment in this regard is that the Constitutional
Court has not made any ruling or passed judgment in such matter. In other
words, no application has been decided on the merits…,.
The law or guiding principles governing applications for
referral to the Constitutional Courts are very clear. The underlining (sic) factor is whether the
application for referral is frivolous or vexatious or not. Once established
that it is frivolous and vexatious, the court a quo will to dismiss the
application (sic). On the contrary, if the application is not frivolous and
vexatious, the court a quo has to refer the matter to the Constitutional Court.
I would like to point out that our jurisprudence has not
been developed in this regard and especially on the provision being challenged
which the accused is being charged under. We definitely need guidance from the
superior court of the land.
The application made by the accused is not frivolous and
vexatious and I don't hesitate to refer it to the Constitutional Court…,.”
The trial magistrate was correct in restating the
requirement that the court must refer the question unless it considers that the
request is merely frivolous or vexatious. However, in deciding to refer the
matter, he did not explain why he was of the opinion that the request was not
frivolous or vexatious.
He did not consider how section 33(2)(b) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] may contravene the
Constitution. He did not explain which sections of the Constitution may be
violated if an accused person undergoes a trial on a charge of contravening section
33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In
short, he was under the impression that simply regurgitating the provision was
sufficient.
In this, he was wrong.
In Jennifer Williams and Another v P. Msipha N.O. and Ors
SC22-10, the Supreme Court, sitting as a Constitutional Court, made the
following pertinent remarks at pages 17-18 of the cyclostyled judgment: -
“…,. The opinion which the person presiding in the lower
court is required to form is a particular opinion in the sense that he or she
is expected to form it by reference to specific criteria. The raising of a
question in a court of law is an action or legal proceeding which includes all
material facts required to be proved by the party raising the question to
entitle him or her to relief…,.
The judicial officer is required to have knowledge of the
ordinary and natural meaning of the words “frivolous and vexatious,” which
constitutes the standard which he or she must conscientiously and objectively
apply to the facts on which the question as to the contravention of the
fundamental human right or freedom is raised.”
I agree entirely with the above remarks.
A lower court must consider the facts of the case and
determine, on the basis of those facts, what provision in the Constitution may
be violated and the specific question that requires determination by the
Constitutional Court.
In the present case, there was no such analysis of the
facts and the Constitutional provisions that may be violated. There is little
doubt that the magistrate did not properly apply his mind to the principles of
referral. He appears to have been uncertain as to what was required of him. Nor
is it clear from his reasons what question exactly he referred for
determination by this court.
It follows, therefore, that the matter was not properly
referred.
MINISTER NOT CITED
Moreover, the Minister, under whose administration the Act
is assigned, must be a party to the proceedings.
How can this court grant the relief sought that section
33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is
unconstitutional without hearing the Minister charged with the administration
of the Act, particularly in a case, such as the present, where a final, not a
provisional order, is sought?
It goes without saying that such relief is not available
consequent upon the failure to cite the relevant Minister.
CONCLUSION
The preliminary point therefore succeeds. The
matter is therefore struck off the roll with no order as to costs.
