Danis David Konson v The State

The applicant was convicted of murder with actual intent by the High Court sitting at Bulawayo under Case No HB 158/13 on 3 February 2014. He was sentenced to death after the court found no extenuating circumstances. The applicant and the deceased had been in a long-term relationship during which he set her up in business with a shop. The deceased terminated the relationship and entered into a new relationship with another man. The applicant, unhappy with this development, made unsuccessful attempts to resuscitate the relationship. He then proceeded to her residence accompanied by a friend and a police detail, then to her business premises where he shot and killed the deceased and wounded a policeman after conducting enquiries on the business venture. An automatic appeal followed. During the appeal proceedings before the Supreme Court on 17 November 2014, the applicant alleged violations of his constitutional right to a fair trial and requested referral to the Constitutional Court under s 175(4) of the Constitution.

• Whether the applicant's right to a fair hearing as guaranteed by s 69(1) of the Constitution of Zimbabwe was violated by the trial judge descending into the arena
• Whether the applicant was given a sentence that was not competent in terms of law, particularly whether a death sentence could be imposed when Parliament had not enacted legislation providing circumstances for imposing death sentences as required by s 48(2) of the Constitution

1. The applicant's right to a fair hearing in accordance with s 69(1) of the Constitution was declared to have been violated by the proceedings in Case No HCB 158/13. 2. The proceedings conducted under Case No HCB 158/13 were set aside. 3. The matter was remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

A trial judge violates an accused person's constitutional right to a fair hearing under s 69(1) of the Constitution when he descends into the arena by questioning the accused in such a manner that, because of its frequency, length, timing, form, tone, or content, conveys or is likely to convey an impression of hostility, bias, or lack of impartiality. A judge must refrain from questioning witnesses or the accused in such a way that may preclude him from detachedly or objectively appreciating and adjudicating upon the issues, or in a way that may intimidate or disconcert the witness and affect credibility. The judge's impartiality must not only exist but must be seen to exist. Where a trial judge's conduct demonstrates he has prejudged the issues and deprived himself of the detached impartiality required, the fairness of the trial is undermined and the proceedings must be set aside as unconstitutional.

The Court noted that both counsel agreed it would be in the interests of justice for the proceedings to be set aside and the matter remitted for trial de novo before a different judge. The Court also observed that having found the trial unfair and set aside the proceedings, no benefit would ensue from determining the question of the constitutional validity of the death sentence, as that sentence was imposed in proceedings that were being set aside. The Court thus declined to address the second constitutional issue referred by the Supreme Court concerning whether a death sentence could be imposed when Parliament had not yet enacted legislation under s 48(2) of the Constitution providing for the circumstances in which death sentences may be imposed.

This case is significant in Zimbabwean constitutional jurisprudence as it establishes clear boundaries for judicial questioning during criminal trials and reinforces the constitutional right to a fair trial. It demonstrates the Constitutional Court's willingness to scrutinize trial proceedings and set them aside where judicial conduct undermines the appearance of impartiality and fairness. The judgment provides important guidance on the limits of judicial intervention in criminal trials, emphasizing that judges must maintain visible impartiality and avoid creating impressions of bias through the frequency, length, timing, form, tone, or content of their questioning. It affirms that the right to a fair trial under s 69(1) of the Constitution is a fundamental safeguard that will be enforced by setting aside convictions where violated, regardless of the gravity of the offense charged.