Ignatius Morgen Chiminya Chombo v National Prosecuting Authority and Others

The applicant, a former cabinet Minister, was violently arrested by military personnel in the early hours of 15 November 2017. Soldiers raided his home using explosives, handcuffed him, blindfolded him, and detained him at an unknown location for 9 days. During this period he was interrogated while blindfolded about his ministerial duties and party activities. He was not physically assaulted nor was any confession or evidence extracted from him regarding criminal offences. On 23 November 2017, he was delivered to his residence still blindfolded, where police officers arrested him at his gate on three criminal charges: contravening the Prevention of Corruption Act, Criminal Abuse of Office, and fraud. The applicant challenged his remand on grounds of over-detention beyond 48 hours, which was rejected by the magistrates court. He then approached the High Court under section 85 of the Constitution seeking declarations that his constitutional rights were violated and an order for permanent stay of prosecution.

• Whether the High Court has jurisdiction to hear an application for declaration of constitutional rights violations under section 85 of the Constitution when criminal proceedings are pending in the magistrates court
• Whether the procedure followed by the applicant was correct or whether he should have waited for trial and requested a referral to the Constitutional Court under section 175(4)
• Whether the military personnel who arrested and detained the applicant were state agents
• Whether the applicant's constitutional rights under sections 49, 50, 51, 52, 53, and 56 of the Constitution were violated
• Whether a permanent stay of prosecution is the appropriate remedy where an accused person was tortured or ill-treated but no confession or evidence was extracted for use in the prosecution

The application was dismissed. Each party was ordered to bear its own costs.

A permanent stay of prosecution will not be granted solely on the basis that an accused person was subjected to torture or ill-treatment prior to being charged, unless the prosecution relies on evidence or confessions obtained as a result of that torture or ill-treatment. Where the prosecution is based on independent evidence not tainted by the constitutional violations, the ill-treatment per se does not affect the validity of the decision to charge and prosecute, and the appropriate remedy lies in a claim for damages rather than a stay of prosecution. The High Court has jurisdiction under section 85(1) of the Constitution to determine applications alleging constitutional rights violations even where criminal proceedings are pending in lower courts, by virtue of its inherent jurisdiction and concurrent jurisdiction with magistrates courts.

The court expressed strong condemnation of torture and ill-treatment of accused persons, describing the conclusion as 'regrettable in the extreme' but an 'inevitable consequence of the proper interpretation of the law.' The court noted that the Constitutional Court itself, through the late Chief Justice Chidyausiku, had acknowledged this conclusion was reached painfully. The court discussed the distinction between dissenting and concurring opinions, providing detailed analysis of the separate judgment by Garwe JCC in Makaza, characterizing it as a dissenting judgment representing 'law for the future' but not binding precedent. The court observed that in this case, the ill-treatment of the applicant appeared to be 'for no discernible reason at all' and that 'quite excessive force and violence were used to capture the applicant leaving a trail of destruction' while 'nothing meaningful was happening except to keep him in isolation for a lengthy period while extraneous questions were routinely put to him.'

This case clarifies the High Court's jurisdiction under section 85 of the Constitution to determine constitutional rights violations even when criminal proceedings are pending in lower courts. It confirms that the High Court, as a court of inherent and concurrent jurisdiction, can hear such applications without requiring referral from magistrates courts under section 175(4). The judgment also reinforces the principle from Mukoko and Makaza that torture or ill-treatment of an accused person does not automatically warrant a permanent stay of prosecution unless the prosecution relies on fruits of that ill-treatment (confessions or evidence extracted thereby). The case demonstrates the doctrine of stare decisis and the binding nature of Constitutional Court majority judgments on lower courts, even where dissenting opinions may suggest a different approach. It highlights the distinction between concurring and dissenting opinions and clarifies that only the majority opinion constitutes binding precedent.