ZIMBABWE’S new criminal code is invalid as it ousts the Roman-Dutch law prescribed by the constitution, a constitutional appeal lodged with the S
upreme Court this week argues.
The appeal, that may have far-reaching consequences for the administration of justice in the country, seeks to set aside a conviction and subsequent release from prison of a person jailed under the Criminal Law (Codification and Reform) Act on grounds that it is unconstitutional.
The Act, which became operational in July, stipulates that the Roman-Dutch criminal law “shall no longer apply within Zimbabwe to the extent that this code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law”.
Blessing Mahwire, who is doing time at Chikurubi prison after being sentenced to an effective two years in jail in a corruption-related case, filed the application on Wednesday through Harare lawyer Lewis Uriri of Honey & Blackenberg. Attorney-General Sobusa Gula-Ndebele and Justice minister Patrick Chinamasa are the respondents.
In her founding affidavit, Mahwire said whereas Section 89 of the constitution says the Roman Dutch law is the one that is in force in Zimbabwe, Section 3 of the Criminal Law (Codification and Reform) Act says the former no longer applies and as a result repeals it.
Mahwire said it was not possible for an Act of Parliament to repeal a section of the constitution, as this has to be done through a constitutional amendment.
The applicant’s affidavit reads: “Section 3 of the Criminal Code purports to wholly do away with the Roman-Dutch law and to replace it with provisions of the criminal code.
“In so doing parliament acted unlawfully and outside the parameters of Section 89 of the constitution. Parliament’s illegitimate baby cannot be saved. It is unconstitutional and as such of no force or effect,” she argued.
Mahwire said that if the act is found to be unconstitutional she must be released from prison.
“I further pray that in remedying the breach, this court may be pleased to set aside the whole process leading to and including my conviction and sentence and that I forthwith be released from prison,” she said.