Cuthbert Tapuwanashe Chawira & 13 Ors v Minister of Justice Legal and Parliamentary Affairs & 2 Ors

The fifteen applicants were condemned prisoners on death row awaiting execution after being sentenced to death by the High Court. They had been on death row for varying periods ranging from 2 to 18 years. Their cases were at varying stages of progress to finality - some had yet to appeal to the Supreme Court while others had their appeals dismissed but were yet to exercise their right to seek presidential pardon under s 48(2)(e) of the Constitution. The applicants approached the Constitutional Court directly without first exhausting available statutory remedies including administrative review, appeals to the Supreme Court, and seeking presidential pardon. They initially sought commutation of their death sentences to life imprisonment, but at the hearing amended their relief to seek quashing of the death sentences and remittal to the High Court for resentencing.

• Whether the Constitutional Court has jurisdiction to grant the order requested by the applicants and whether the issues raised are ripe for determination
• Whether the delay in carrying out the death sentences constitutes a violation of the applicants' fundamental human rights under sections 51 (right to human dignity) and 53 (freedom from torture or cruel, inhuman or degrading treatment or punishment) of the Constitution
• Whether applicants should exhaust alternative remedies (administrative review, Supreme Court appeal, and presidential pardon) before approaching the Constitutional Court
• Application of the doctrines of ripeness and constitutional avoidance

The application was dismissed with no order as to costs

The Constitutional Court will not determine constitutional issues prematurely where litigants have not exhausted available alternative remedies, including administrative review, appeals, and presidential pardon. The doctrine of ripeness and constitutional avoidance requires that courts decline to determine constitutional questions when remedies are available under other legislative provisions or on other bases. As the highest court of last resort in constitutional matters, the Constitutional Court should only intervene when the wheels of justice have turned full circle and all alternative remedies have been exhausted. Events occurring in prison after conviction and sentence are not grounds for the trial court (which is functus officio) to reconsider conviction or sentence; such matters should be addressed through available alternative remedies including administrative review, appeal, or presidential clemency.

The court observed that it is an immutable principle of Zimbabwean law that no one may be executed without due process, meaning applicants were not in danger of extra-judicial execution while alternative remedies remained available. The court noted that if all cases with constitutional implications were brought directly to the Constitutional Court, it would be overwhelmed to the point of dysfunction and the existence of other courts and administrative authorities would be rendered nugatory. The court also observed that one cannot fault condemned prisoners for fighting for survival with all means at their disposal, which explained the decision to make no order as to costs despite dismissing the application. The court commented that while the wheels of justice tend to turn slowly, this is not reason for the Constitutional Court to prematurely intervene and usurp the authority and functions of the High Court, Supreme Court and President.

This case establishes important principles regarding access to the Constitutional Court in Zimbabwe. It affirms the doctrine of ripeness and constitutional avoidance, holding that the Constitutional Court, as the highest court of last resort in constitutional matters, should not prematurely intervene when alternative remedies remain available. The judgment reinforces the hierarchical nature of Zimbabwe's judicial system and the principle that constitutional courts will generally decline jurisdiction where litigants have not exhausted other available legal remedies. It provides guidance on when constitutional courts will intervene in capital punishment cases, distinguishing circumstances where execution is imminent and all remedies exhausted (as in the Catholic Commission case) from cases where the legal process remains incomplete. The case also affirms the importance of respecting the functus officio doctrine and the principle that post-conviction prison conditions should be addressed through administrative review rather than as grounds for re-sentencing.