Source: Private lawyer rescues AG’s Office | The Herald September 29, 2016
Fidelis Munyoro Chief Court Reporter—
The Attorney-General’s Office, which has courted a barrage of criticism from superior courts judges for their perfunctory approach to matters of national importance, yesterday engaged a private lawyer to avoid embarrassment in the Constitutional Court. Advocate Lewis Uriri rescued the State after he successfully argued the case in which the police are being sued for over $1 million. Two soldiers — Michael Nyika (27) and Crispen Tobaiwa — who were injured by police gunfire had, through their lawyer Mr Tendai Biti, brought the case to the highest court for confirmation of the constitutional invalidity of Section 70 of the Police Act.
The section provides that any action against police should be commenced within eight months of the date of the conduct complained of. Sources close to the proceedings said police authorities specifically instructed the AG’s Office to outsource good lawyers in private practice to argue the matter, for fear of losing the case.
It emerged during the hearing that the two soldiers sued the Ministry of Home Affairs, which does not have a legal personality. Justice Amy Tsanga, who presided over the civil litigation, did not deal with the objection to the citation of the Minister of Home Affairs.
She simply purported to have corrected the citation. There was no indication in the record that there was application to amend the citation. In his submission, Adv Uriri argued that the court could not grant an indulgence, which had not been asked for. “The citation of a none existent legal entity is fatal and cannot be correct,” argued Adv Uriri.
“It is not clear how the matter has ended up before this court. The requisite procedures have not been followed.” Adv Uriri argued that the order Mr Biti sought to be confirmed was itself void given that there was no valid action in the High Court. “There was nothing before that court which could have created a basis for an attack to be made against the validity of the provision,” argued Adv Uriri.
“This should have been the basis the Constitutional Court could relate to in the exercise of the review powers by reason of Section 45 of the Rules of the Constitutional Court, which brings into application the practice and procedures of the Supreme Court.’ He said the lower court judge could not have overlooked a preliminary objection and purport to deal with the merits of the matter.
“The matter is not properly before the court,” he said. Justice Tsanga referred the matter to the Constitutional Court in terms of Section 175 (1) of the Constitution for confirmation of an order which invalidated a statutory provision. But Adv Uriri argued that the section, which the judge relied on was not procedural, but it was substantive.
“It grants the court the power to declare an Act invalid,” he said. “The procedural step to place the case before the Constitutional Court is created by Section 175(3), which say an interested party can apply to the Constitutional Court to confirm the order or appeal seeking the relief that the order of the High Court be confirmed.
“The order of the High Court was itself invalid. It was void from the beginning and nothing could depend on it. First, because of the procedural irregularities that were cited. But most importantly because the judge did not have the jurisdiction to entertain the matter.”
He said the power of the High Court in terms of Section 175 (1) of the Constitution is exercised only in relation to Section 85 of the Constitution, The section allows a person to approach any court in the first instance seeking the enforcement fundamental rights.
“That section does not apply where a Constitutional question arises in ordinary none-constitutional matters. In that case, the judge should have referred the matter to Constitutional Court at her own instance or upon request.”
He added that Section 175 (4) did not give her the power to decide on the Constitutional question that arose in the course of ordinary non constitutional litigation. Deputy Chief Justice Luke Malaba also noted during the arguments that Justice Tsanga had created her own application that was not before her and dealt with it. But the Chief Justice Godfrey Chidyausiku felt that Mr Biti as an experienced lawyer should have guided the judge to arrive at a proper decision.
In his counter-submission Mr Biti emphasised on the inherent powers the High Court has as a court of original jurisdiction. “The high court has inherent jurisdiction and can refer a matter to the Constitutional Court regardless of the provisions of Constitution,” argued Mr Biti.
After hearing arguments from both counsel Chief Justice Chidyausiku struck the matter off the role. “After considering papers filed in this matter and hearing submission by counsel the court is of the unanimous view that the matter is not properly before this court,” said Chief Justice Chidyausiku.
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