Annex 3
EXTRACTS FROM THE CONSTITUTION OF ZIMBABWE
CHAPTER VII
THE JUDICIARY
SECTIONS—18,
79, 83, 84, 85, 86, 87, 90 AND
91 ONLY
18 PROVISIONS TO
SECURE PROTECTION
OF LAW
(1) Subject to the provisions of this Constitution,
every person is entitled to the protection of the law. [Subsection
as amended by section 3 of Act 4 of 1993]
(2) If any person is charged with a criminal
offence, then, unless the charge is withdrawn, the case shall
be afforded a fair hearing within a reasonable time by an independent
and impartial court established by law.
(3) Every person who is charged with a criminal
offence:
(a) shall be presumed to be innocent until
he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably
practicable, in a language that he understands and in detail,
of the nature of the offence charged;
(c) shall be given adequate time and facilities
for the preparation of his defence;
(d) shall be permitted to defend himself
in person or, save in proceedings before a local court, at his
own expense by a legal representative of his own choice;
(e) shall be afforded facilities to examine
in person or, save in proceedings before a local court, by his
legal representative the witnesses called by the prosecution before
the court and to obtain the attendance and carry out the examination
of witnesses to testify on his behalf before the court on the
same conditions as those applying to witnesses called by the prosecution;
and
(f) shall be permitted to have without payment
the assistance of an interpreter if he cannot understand the language
used at the trial of the charge;
and, except with his own consent, the trial
shall not take place in his absence unless he so conducts himself
as to render the continuance of the proceedings in his presence
impracticable and the court has ordered him to be removed and
the trial to proceed in his absence.
(4) When a person is tried for any criminal
offence, the accused person or any person authorised by him in
that behalf shall, if he so requires and subject to payment of
such reasonable time after judgement a copy for the use of the
accused person of any record of the proceedings made by or on
behalf of the court.
(5) No person shall be held to be guilty
of a criminal offence on account of any act or omission that did
not, at the time it took place, constitute such an offence, and
no penalty shall be imposed for any criminal offence that is severer
in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed.
(6) No person who shows that he has been
tried by a competent court for a criminal offence upon a good
indictment, summons or charge upon which a valid judgement could
be entered and either convicted or acquitted shall again be tried
for that offence or for any other criminal offence of which he
could have been convicted at the trial for that offence, save:
(a) where a conviction and sentence of the
High Court or of a court subordinate to the High Court are set
aside on appeal or review on the ground that evidence was admitted
which should not have been admitted or that evidence was rejected
which should have been admitted or on the ground of any other
irregularity or defect in the procedure; or
[Paragraph as amended by section 3 of Act 4
of 1993]
(7) No person shall be tried for a criminal
offence if he shows that he has been pardoned for that offence.
(8) No person who is tried for a criminal
offence shall be compelled to give evidence at the trial.
(9) Subject to the provisions of this Constitution,
every person is entitled to be afforded a fair hearing within
a reasonable time by an independent and impartial court or other
adjudicating authority established by law in the determination
of the existence or extent of his civil rights or obligations.
[Subsection as amended by section 3 of Act 4
of 1993]
(10) Except in the case of a trial such
as is referred to in subsection (14) or with the agreement of
all the parties thereto, all proceedings of every court and proceedings
for right or obligation before any other adjudicating authority,
including the announcement of the decision of the court or other
authority, shall be held in public.
(11) Nothing in subsection (10) shall prevent:
(a) the court or other adjudicating authority
from excluding from the proceedings, except the announcement of
its decision, persons other than the parties thereto and their
legal representatives to such extent as the court or other authority:
(i) may be law be empowered so to do and
may consider necessary or expedient in circumstances where publicity
would prejudice the interests of justice, or in interlocutory
proceedings, or in the interests of justice of public morality,
the welfare of persons under the age of 21 years or the protection
of the private lives of persons concerned in the proceedings;
or
(ii) may by law be empowered or required
so to do in the interests of defence, public safety, public order
or the economic interests of the State; or
(b) the court from excluding from proceedings
preliminary to trial in respect of a criminal offence persons
other than the accused person and his legal representative when
so required by law, unless the accused person otherwise requests.
(12) Notwithstanding anything contained
in subsection (4), (10) or (11), if in any proceedings before
such court or other adjudicating authority as is referred to in
subsection (2) or (9), including any proceedings by virtue of
section 24, a certificate in writing is produced to the court
or other authority signed by a Minister that it would not be in
the public interest for any matter to be publicly disclosed, the
court or other authority shall make arrangements for evidence
relating to that matter to be heard in camera and shall take such
other action as may be necessary or expedient to prevent the disclosure
of that matter.
(13) Nothing contained in or done under
the authority of any law shall be held to be in contravention
of:
(a) subsection (2), (3) (e) or (9) to the
extent that the law in question makes reasonable provision relating
to the grounds of privilege or public policy on which evidence
shall not be disclosed or witnesses are not competent or cannot
be compelled to give evidence in any proceedings;
(b) subsection (3) (a) to the extent that
the law in question imposes upon any person charged with a criminal
offence the burden of proving particular facts;
(c) subsection (3) (e) to the extent that
the law in question imposes reasonable conditions which must be
satisfied if witnesses called to testify on behalf of an accused
person are to be paid their expenses out of public funds;
(d) subsection (6) to the extent that the
law in question authorises a court to try a member of a disciplined
force for a criminal offence notwithstanding any trial and conviction
or acquittal of that member under the appropriate disciplinary
law, so, however, that any court so trying such a member and convicting
him shall in sentencing him to any punishment take into account
any punishment awarded him under that disciplinary law; or
(e) subsection (8) to the extent that the
law in question authorises a court, where the person who is being
tried refuses without just cause to answer any question put to
him, to draw such inferences from that refusal as are proper and
to treat that refusal, on the basis of such inferences, as evidence
corroborating any other evidence given against that person.
(14) In the base of a person who is held
in lawful detention, the provisions of subsection (2) shall not
apply in relation to his trial for a criminal offence under the
law regulating the discipline of persons held in such detention,
save that the base of such person shall be afforded a fair hearing
within a reasonable time, and the person or authority conducting
the trial shall be regarded as a court for the purposes of this
section.
(15) For the purposes of this section, a
local court shall not be regarded as not being an independent
and impartial court by reason of:
(a) the fact that a member of the court has
an interest in the proceedings because of his position in the
tribal society; or
(b) the traditional or customary tribal practices
and procedures.
79B INDEPENDENCE
OF JUDICIARY
In the exercise of his judicial authority, a
member of the judiciary shall not be subject to the direction
or control of any person or authority, except to the extent that
a written law may place him under the direction or control of
another member of the judiciary.
[Section as inserted by section 10 of Act 30
of 1990]
86 TENURE OF
OFFICE OF
JUDGES
(1) Subject to the provisions of this section,
a judge of the Supreme Court or the High Court shall retire when
he attains the age of 65 years unless, before he attains that
age, he has elected to retire on attaining the age of 70 years:
Provided that:
(a) an election under this subsection shall
be subject to the submission to, and acceptance by, the President,
after consultation with the Judicial Service Commission, of a
medical report as to the mental and physical fitness of the judge
so to continue in office;
(b) the provisions of this subsection shall
not apply to an acting judge or a judge who has been appointed
for a fixed period of office;
[Subsection as amended by section 13 of Act
25 of 1981, by sections 3 and 7 of Act 4 of 1984 and by section
20 of Act 23 of 1987]
(2) A judge of the Supreme Court or the
High Court may at any time resign his office by notice in writing
to the President.
[Subsection as amended by section 13 of Act
25 of 1981]
(3) The office of a judge of the Supreme
Court or the High Court shall not, without his consent, be abolished
during his tenure of office.
[Subsection as amended by section 13 of Act
25 of 1981]
(4) A judge of the Supreme Court or the
High Court may, notwithstanding that he has attained the age at
which he is required by subsection (1) to retire, sit as a judge
for the purpose of giving judgement or otherwise in relation to
any proceedings commenced before or heard by him while he was
in office.
[Subsection as amended by section 13 of Act
25 of 1981]
87 REMOVAL OF
JUDGES FROM
OFFICE
(1) A judge of the Supreme Court or the
High Court may be removed from office only for inability to discharge
the functions of his office, whether arising from infirmity of
body or mind or any other cause, or for misbehaviour and shall
not be so removed except in accordance with the provisions of
this section.
[Subsection as amended by section 13 of Act
25 of 1981]
(2) If the President considers that the
question of the removal from office of the Chief Justice ought
to be investigated, the President shall appoint a tribunal to
inquire into the matter.
[Subsection as amended by section 13 of Act
23 of 1987]
(3) If, in the case of a judge of the Supreme
Court or the High Court other than the Chief Justice, the Chief
Justice advises the President that the question of removal from
office of the judge concerned ought to be investigated, the President
shall appoint a tribunal to inquire into the matter.
[Subsection as amended section 13 of Act 25
of 1981, by section 6 of Act 4 of 1985 and by section 20 of Act
23 of 1987]
(4) A tribunal appointed under subsection
(2) or (3) shall consist of not less than three members selected
by the President from the following:
(a) persons who have held office as a judge
of the Supreme Court or the High Court;
(b) persons who hold or have held office
as a judge of a court having unlimited jurisdiction in civil or
criminal matters in a country in which the common law is Roman-Dutch
or English, and English is an official language;
(c) legal practitioners of not less than
seven years' standing who have been nominated under subsection
(5);
[Paragraph repealed by section 6 of Act 25 of
1981]
one of whom shall be designated by the President
as chairman.
[Subsection as amended by sections 6 and 13
of Act 25 of 1981]
(4a) In computing, for the purposes of subsection
(4) (c), the period during which a person has had standing as
a legal practitioner, any period during which he has had standing
as an advocate or attorney in Zimbabwe shall be included.
[Subsection as inserted by section 6 of Act
25 of 1981]
(5) It shall be the duty of the association
which is constituted under an Act of Parliament and which represents
legal practitioners practising in Zimbabwe to nominate a panel
containing the names of not less than three duly qualified legal
practitioners for the purposes of subsection (4) (c) when so required
by the President.
[Subsection as amended by section 6 of Act 25
of 1981]
(6) A tribunal appointed under subsection
(2) or (3) shall inquire into the matter and report on the facts
thereof to the President and recommend to the President whether
or not he should refer the question of the removal of the judge
from office to the Judicial Service Commission, and the President
shall act in accordance with such recommendation.
(7) The provisions of the Commissions of
Inquiry Act [Chapter 80] as in force at the time or any other
law substituted for the same shall, mutatis mutandis, apply
in relation to a tribunal appointed under subsection (2) or (3)
as they apply to Commissioners appointed under that Act.
(8) If the question of removing a judge
of the Supreme Court or the High Court from office has been referred
to a tribunal under subsection (2) or (3), the judge shall be
suspended from performing the functions of his office until the
President, on the recommendation of the tribunal or the Judicial
Service Commission, revokes the suspension or the judge is removed
from office in accordance with subsection (9).
[Subsection as amended by section 13 of Act
25 of 1981]
(9) If the question of the removal of a
judge has been referred to the Judicial Service Commission in
accordance with subsection (6) and the Commission advises that
the judge be removed from office, the President shall, by order
under the public seal, remove the judge from office.
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