MALABA
DCJ:
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, Mr Mutangadura,
who appeared 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 [Cap.
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 [Cap.
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) 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.”
Mr
Mutangadura
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) 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) 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.”
(emphasis added)
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
SC 3/09, CHIDYAUSIKU
CJ
at p2 of the cyclostyled judgment said:
“Section
24 of the Constitution is peremptory. This court has no discretion to
condone a departure from compliance with section 24 of the
Constitution. Consequently failure to comply with the procedure set
out in section 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.
CHIDYAUSIKU
CJ:
I agree
ZIYAMBI
JA:
I agree
GARWE
JA:
I agree
CHEDA
AJA:
I agree
Mbidzo,
Muchadehama & Makoni,
appellant's legal practitioners
The
Attorney-General's Office,
respondent's legal practitioner
