Goliath Diza Nyambo v The State

The appellant was convicted of murder with actual intent by the High Court in Harare on 10 October 1994 and sentenced to death, with the court finding no extenuating circumstances. He had raped a twelve-year-old girl in July 1993, and when she indicated she recognized him, he brutally attacked her with an axe, chopping her on the left ear and back of the head, leaving her body in the bush. He noted an appeal against sentence on 20 October 1994 by completing a prison form, but the record and notice of appeal did not reach the Supreme Court registrar until over ten years later. The delay in processing the appeal was unexplained, though both parties accepted the appeal had been properly noted.

• Whether the delay of over ten years in hearing the appeal violated the appellant's fundamental constitutional rights
• Whether such delay, if established, should result in commutation of the death sentence to life imprisonment
• Whether the matter should be referred to the Constitutional Court
• Whether the Constitution of Zimbabwe Amendment (No. 13) Act, 9 of 1993 barred relief based on delay in execution
• Whether there were extenuating circumstances justifying interference with the death sentence

The application to refer the matter to the Constitutional Court was dismissed. The appeal against sentence was dismissed. The death sentence imposed by the High Court was confirmed. The registrar of the Supreme Court was directed to bring the judgment to the attention of the Commissioner of Prisons regarding proper procedures for noting appeals.

Delay in the execution of a death sentence does not constitute a violation of constitutional rights where the Constitution of Zimbabwe Amendment (No. 13) Act, 9 of 1993 applies. Section 15(5) of the Amendment Act expressly provides that delay in execution of a death sentence shall not be held to be a contravention of the constitutional prohibition against inhuman or degrading treatment. Section 15(6) bars any stay, alteration or remission of sentence on grounds of constitutional violations occurring after sentencing, whether the sentence was imposed before, on or after the commencement of the Amendment Act. Where an offence was committed and sentence imposed after the Amendment Act came into force (or within its scope of application), an accused is not entitled to relief based on execution delay, notwithstanding earlier precedents to the contrary.

The Court made important observations about administrative procedures for appeals noted by prisoners in person. Cheda JA noted that the prison form used for noting appeals was addressed only to the registrars of the High Court and Supreme Court, not the Attorney-General, and the accompanying letter from the Prisons Department similarly was not copied to the Attorney-General. The Court observed that "In order to ensure that the Attorney-General is made aware of such an appeal, the prison form should be copied to the Attorney-General's Office so that he is informed about the appeal as soon as it is noted." This administrative deficiency may have contributed to the ten-year delay in processing the appeal. The Court also expressed its view on the brutality of the crime, noting the appellant "proceeded to cut firewood before returning to the compound where he lived" after murdering the child, demonstrating callousness beyond the act itself.

This case is significant in Zimbabwean jurisprudence as it demonstrates the effect of the Constitution of Zimbabwe Amendment (No. 13) Act, 9 of 1993, which reversed the position established in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General regarding delay in execution of death sentences. The case establishes that legislative amendments can prospectively override judicial precedents on constitutional matters. It also highlights systemic issues with prison appeal procedures and resulted in a directive to improve administrative processes to ensure the Attorney-General is promptly notified of appeals. The case illustrates the interaction between constitutional rights, legislative intervention, and capital punishment in Zimbabwe.