SUPREME Court judge Justice Wilson Sandura passed a dissenting judgement in a constitutional case brought before the court by former MDC MP for Chimanimani Roy Bennett when he was still behind bars on contempt of parliament charges.
ra differed with Chief Justice Godfrey Chidyausiku while other judges, Justice Luke Malaba, Maphios Cheda and Elizabeth Gwaunza, concurred with the head of the judiciary to dismiss Bennett’s application for an early release.
The MDC national treasurer, who was sentenced to a year in prison in October 2004 for shoving Justice minister Patrick Chinamasa in parliament, made the constitutional appeal on four grounds.
Bennett argued that the punishment imposed on him constituted an inhuman and degrading penalty in violation of Section 15 of the Constitution and that provisions of the Privileges, Immunities and Powers of Parliament Act used to incarcerate him were ultra vires the Constitution. Bennett, now living in exile, also argued that he was discriminated against on race and political grounds as well as that his right to a fair hearing by an impartial and independent court were violated as Zanu PF members were biased against him.
In a judgement made available to the Zimbabwe Independent on Monday, Chidyausiku said if the Supreme Court had dealt with the matter it would not have imposed a one-year sentence, but still dismissed the appeal saying: “In my view the punishment imposed in this case, though severe, is not grossly disproportionate to the offence.”
However, Justice Sandura said: “I have read the judgement prepared by Chidyausiku CJ, but respectfully disagree with it.”
The Supreme Court judge said of all the arguments raised he would have disposed of the matter by determining the main issue — whether the sentence imposed on Bennett was unconstitutional.
“In the circumstances, I would have granted the application on the basis that the sentence imposed on Bennett contravened Section 15(1) of the Constitution, and ordered that Bennett be released from prison on the day the application was heard, without hearing submissions on the other constitutional issues raised by him,” said Sandura.
Justice Sandura said parliament ought to have looked at what the former MP had undergone at the hands of state agents who defied court orders and are accused of killing some of his employees, leading him “to act in the heat of the moment and in response to severe provocation”.
Sandura also noted that the Attorney-General’s office had in its heads of argument conceded that the sentence was unconstitutional, only to withdraw the assertion at the last minute in court.
On the other grounds such as the Privileges, Immunities and Powers of Parliament Act which Bennett raised, Justice Chidyausiku dismissed the arguments saying even the United Kingdom parliament had identical powers.
Bennett said that he was discriminated against on racial grounds citing Chinamasa’s comments to the effect that if the former MDC legislator was a black person he was going to be “ready to forgive and forget”.