(1) Petros Makaza (2) Golden Nhika v The State and (1) Khumbuzo Gumbo (2) Sydney Ndachengedzwa v The State

These two consolidated matters involved applicants seeking permanent stays of criminal prosecution based on alleged torture and ill-treatment by police. In the first matter (Makaza case), the applicants were charged with robbery and theft under s 126 of the Criminal Law (Codification and Reform) Act. They alleged that on 10 August 2012, after being arrested for wearing MDC T-shirts, they were assaulted by the complainant (a soldier) and police officers, then handed over to members of Chipangano (a vigilante brigade) who further tortured them to extract confessions. No confession was obtained despite the torture. In the second matter (Gumbo case), the applicants were charged with theft of US$107,774 from their employer. They alleged torture through police dog attacks while making indications. The State disputed this, claiming the dogs were released only after the applicants attempted to flee. This factual dispute was never resolved by the magistrate before referral. Both matters were referred to the Constitutional Court under s 24(2) of the former Constitution alleging breaches of ss 15(1) (protection against torture) and 18 (right to fair hearing).

• Whether a constitutionally legitimate prosecution can be conducted where the State violates a fundamental right
• Whether the violation of the right to be free from torture warrants a permanent stay of prosecution
• What remedy is available under the ubi jus ibi remedium principle where an accused person is tortured prior to prosecution
• Whether torture or ill-treatment per se taints the validity of a decision to prosecute
• Whether there must be a nexus between torture and the evidence supporting the prosecution for a stay to be warranted
• Whether the Constitutional Court has jurisdiction to grant a permanent stay of prosecution in exceptional circumstances even where sufficient evidence exists to prosecute

In the Makaza case: Application for permanent stay of prosecution dismissed with no order as to costs. In the Gumbo case: According to the majority judgment, the application was dismissed with no order as to costs. However, Garwe JCC would have struck the Gumbo application off the roll for improper referral due to unresolved factual disputes.

Ill-treatment or torture of an accused person per se does not invalidate the decision to prosecute where: (1) there is reasonable suspicion that the accused committed the offence; (2) the prosecution is based on evidence independent of the torture; and (3) there is no direct nexus between the fruits of the torture and the institution of criminal proceedings. The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence merely on account of having been subjected to torture or inhuman treatment before being charged. The constitutional principle of proportionality requires a fair balance between protection of individual fundamental rights and the public interest in prosecuting those reasonably suspected of criminal offences. Where no evidence obtained through torture is used to sustain the prosecution, the appropriate remedy for torture lies in a civil claim for damages or prosecution of the perpetrators, not a permanent stay of criminal proceedings.

The Court made several important obiter observations: (1) The Court abhors torture and considers it wholly unacceptable. (2) In appropriate cases, the Court may feel constrained to order a permanent stay of proceedings where there has been pre-trial violation of fundamental rights, but this remedy will only be granted in extremely rare circumstances and each case must be decided on its merits (citing Mutsinze v Attorney General CCZ 13/2015). (3) Garwe JCC observed (with significant constitutional implications) that under ss 53, 85, and 176 of the Constitution, the Constitutional Court has inherent power and jurisdiction to grant a permanent stay of prosecution in exceptional circumstances, even where sufficient evidence exists, where the violation of rights is serious enough that continuing the prosecution would be alien to the administration of justice. (4) What constitutes such exceptional circumstances warranting a stay must be determined on a case-by-case basis considering factors including the seriousness of the violation and the seriousness of the offence charged. (5) The ubi jus ibi remedium principle applies - for every right violated there should be a corresponding remedy - but a stay of prosecution is not necessarily that remedy in every case. (6) Magistrates referring constitutional matters must resolve disputed facts before referral to enable proper formulation of questions and assessment of whether the matter is frivolous or vexatious.

This case is significant in Zimbabwean constitutional jurisprudence as it clarifies the relationship between pre-trial torture and the validity of criminal prosecutions. It establishes that torture alone does not automatically warrant a permanent stay of prosecution; rather, there must be a direct nexus between the torture and the evidence upon which the prosecution is based. The case follows and applies the principles in Mukoko v Attorney-General, reinforcing that the Constitution does not guarantee protection against prosecution to persons reasonably suspected of criminal offences merely because they were tortured before being charged. The concurring judgment by Garwe JCC is particularly significant as it asserts that under the current Constitution, the Constitutional Court retains inherent jurisdiction to grant permanent stays in exceptional circumstances involving serious violations of fundamental rights, even where the prosecution can be sustained on independent evidence. This represents an important recognition of the court's power to protect its processes from being used for purposes alien to the administration of justice. The case also reinforces procedural requirements that magistrates must resolve disputed facts before referring constitutional matters to the Constitutional Court.