Supreme Court: backlog of Constitutional cases

Several cases referred to the Supreme Court have not been heard or even set down for hearing. These include:

Jestina Mukoko
Jestina Mukoko

Jestina Mukoko succeeded in her application to the Supreme Court for a permanent stay of prosecution on the ground that her unlawful abduction and detention and torture and inhuman treatment by State agents before she was taken to court, were in breach of her constitutional rights. A unanimous five-judge court granted her application in September 2009, saying its reasons for judgment would be given later.

Those reasons have still not been provided two and a half years later. This delay is almost certainly inhibiting progress in other cases – both civil and criminal – in which the legal effect of torture and unlawful detention of accused persons by State agents has become an issue.

Chimakure and Kahiya – this freedom of expression/press freedom challenges the constitutionality of section 31(1)(b) of the Criminal law Code [false news story alleged]. Arguments were heard in June 2010 but the court’s decision has still not been handed down. A decision in this case, if accompanied by reasons for judgment, would assist the lower courts and the Supreme Court itself in dealing with the many cases – criminal cases in particular – in which freedom of expression issues have arisen.

Several such cases already referred to the Supreme Court for guidance remain unheard, including: State v The Chronicle editor and a journalist ; State v Three Media Monitoring Project staffers; State v The Standard editor and journalists; State v Pishai Muchauraya MP; State v Owen Maseko.

The time-worn excuse for delay in setting down cases for argument in the Supreme Court is failure by the official transcription service to provide in good time the necessary records of proceedings in the courts from which the cases come. The serious shortage of transcribers has been notorious for many years, and as a result the Supreme Court’s capacity to hear cases is not being fully utilised. As the transcription service is now under the control of the Judicial Service Commission, it is to be hoped that the Commission can take effective steps to remedy the situation.

As things are, the new Supreme Court term will get off to a very slow start. The cause list for the first week of term is empty – no cases at all will be heard. No constitutional cases have been set down for hearing during the whole of May – even though one day every week – Thursday – is traditionally reserved for the hearing of constitutional cases.

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