Fidelis Munyoro Chief Court Reporter
CHIEF JUSTICE Luke Malaba has criticised lawyers bringing needless cases to the Constitutional Court as a tactic to shield their clients from facing trial in the magistrates’ courts, insisting this will not work in his court.
The Chief Justice made the remarks while dismissing the constitutional case involving controversial pastor Phillip Mugadza, who is being accused of purportedly prophesying President Mugabe’s death. He is now set to face trial at the magistrates’ courts. Mugadza’s case was referred to the Constitutional Court after the man of the cloth raised constitutional issues. Mugadza, who is leader of Remnant Pentecostal Church, had argued that his fundamental rights are being violated.
But the full Constitutional bench led by Chief Justice Malaba unanimously agreed to dismiss Mugadza’s application, saying it was not properly before the court. Chief Justice Malaba said lawyers should seriously interrogate the merit of their clients’ cases before seeking referral to the apex court.
“Cases are coming to the Constitutional Court for purposes of avoiding facing the day in court for trial. The perception now is that cases are being brought to the Constitutional Court as a tactic of avoiding facing trial in the magistrates’ courts. We should not allow such kind of behaviour. We cannot be used in that manner. It is abuse of court process.”
The court did not hear the merits of the case as it preferred to deal with the preliminary point raised by the State on whether the matter was properly before the apex court. Mugadza, who is being represented by the Zimbabwe Lawyers for Human Rights, requested the court to bar the State from being heard, arguing it failed to file its heads of argument within the prescribed period.
But Chief Justice Malaba noted that the proceedings that led to the case being referred to the Constitutional court were flawed. He ruled that the defence motion to bar the prosecution from audience was a nullity given that the proceedings at the lower court were void from the beginning. In the end, the court decided the matter on the objection raised by the prosecution and dismissed the application for want of proper procedure.
Mugadza was arrested in January for prophesying the death of President Mugabe. He was charged with causing offence to persons of a particular race and religion or alternatively causing criminal nuisance. Mugadza appeared before Harare magistrate Nomsa Sabarauta and challenged his arrest and prosecution, arguing that it violated his fundamental rights.
In his application, Mugadza challenged the constitutional validity of Section 42 (2) as read with Section 42(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23, arguing it violated his rights to dignity, equal protection and benefit of the law, freedom of conscience and freedom of expression.
The prosecution alleges that Mugadza insulted the Christian religion and African tradition by uttering words predicting the death of President Mugabe this month and causing the publication of a story in an online media publication entitled “Pastor Mugadza says Mugabe to die in October.”