Douglas Togarasei Mwonzora & 31 Ors v The State

The applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of public violence under Section 36 of the Criminal Law [Codification and Reform] Act. At the hearing, the applicants, who were legally represented, raised complaints regarding the manner of their arrest. In May 2011, without notice to the prosecution, they applied to the magistrate for the matter to be referred to the Supreme Court in terms of s 24(2) of the former Constitution of Zimbabwe. They alleged various constitutional violations including unlawful arrest, torture, assault, abduction, denial of medical attention, detention under inhuman conditions, failure by police to investigate complaints, and challenges to s 121(3) of the Criminal Procedure and Evidence Act. The applicants did not lead any evidence to substantiate these claims before the Magistrate. The prosecutor opposed the referral and denied the allegations. The magistrate referred the matter to the Supreme Court in a terse judgment stating that issues of over-detention and alleged kidnapping deserved the attention of the Supreme Court.

• Whether the application for constitutional referral was properly made to the Supreme Court
• Whether an applicant seeking constitutional relief must adduce evidence before the lower court to substantiate allegations of rights violations
• Whether a magistrate must make findings of fact and determine that constitutional questions raised are not frivolous or vexatious before referring a matter to the Supreme Court
• Whether the failure to give proper notice to the prosecution and to lead evidence is fatal to a constitutional referral application

The application was dismissed. The Constitutional Court found that the matter had not been properly referred from the Magistrates' Court and accordingly dismissed the constitutional application.

An applicant seeking referral of constitutional issues to the Supreme Court/Constitutional Court must adduce oral evidence under oath before the lower court to substantiate allegations of constitutional violations. The referring court must resolve disputes of fact, make findings of fact, and determine that the constitutional questions raised are not frivolous or vexatious before making a referral. Adequate written notice must be given to the State to allow for investigation and the opportunity to cross-examine and adduce contradictory evidence. The factual inquiry is the responsibility of the referring court, not the Constitutional Court. Failure to lead evidence and allow the prosecution to respond is fatal to a constitutional referral application. Only in exceptional circumstances may an applicant supplement the record with affidavits.

The Court noted that it had repeated the principles from S v Banga in several subsequent cases including Matutu v S SC 34/13 and Hellen Matiashe v The Honourable Magistrate Mahwe N.O. & The Attorney General of Zimbabwe CCZ 12/14, indicating a consistent application of these procedural requirements. The Court also observed that the Magistrate in this case appeared to have no idea what he was supposed to do, demonstrating a fundamental misunderstanding of his judicial function in constitutional referral applications. This suggests a need for better training or guidance for lower court judicial officers on constitutional referral procedures.

This case is significant in Zimbabwean constitutional jurisprudence as it reinforces strict procedural requirements for constitutional referrals from lower courts. It establishes clear guidelines that: (1) applicants alleging constitutional violations must lead oral evidence under oath before the referring court; (2) adequate written notice must be given to the State to allow investigation and preparation; (3) the referring court must resolve factual disputes and make findings of fact before referral; (4) the referring magistrate or judge must make a determination that the constitutional questions raised are not frivolous or vexatious; and (5) the factual inquiry is the responsibility of the referring court, not the Constitutional Court. The case serves as an important precedent limiting improper or premature constitutional referrals and ensuring that constitutional litigation is based on established facts rather than unsubstantiated allegations. It protects the integrity of the constitutional referral process and prevents abuse of the procedure.