Jabulani Sibanda v The State

The applicant was chairperson of the War Veterans Association. On 27 October 2014, he addressed a gathering of war veterans at Herbert Mine in Mutasa District who had gathered to exhume and re-bury bodies of deceased war veterans. The State alleged that during a lengthy speech, the applicant uttered words to the effect that the President and his wife were plotting a bedroom coup to remove the State Vice-President and replace her with the President's wife, that power was not sexually transmitted, and that he would mobilise youth, women and war veterans to march to State House and confront the President. The applicant denied making these utterances. He appeared before a Provincial Magistrate at Harare on 30 November or 1 December 2014 charged with contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act, specifically for insulting the office and person of the President. During initial remand proceedings, the applicant's lawyer made an oral application from the bar for referral to the Constitutional Court, without filing written application, calling the applicant to give evidence, or filing an affidavit. The trial magistrate referred the matter to the Constitutional Court.

• Whether the applicant should have given viva voce evidence in support of his request for referral to the Constitutional Court
• Whether the magistrate a quo properly referred the matter to the Constitutional Court
• Whether prosecution under section 33(2)(b) of the Criminal Law (Codification and Reform) Act violates sections 60 and 61 of the Constitution (freedom of conscience and freedom of expression)
• Whether the failure to cite the Minister responsible for administering the Act is fatal to the application

The preliminary point succeeded. The matter was struck off the roll with no order as to costs.

The binding legal principles are: (1) A lower court referring a constitutional matter must consider the facts of the case and determine, on the basis of those facts, what provision in the Constitution may be violated and specify the constitutional question requiring determination by the Constitutional Court; (2) It is insufficient for a lower court to simply state that a referral is not frivolous or vexatious without explaining the basis for that conclusion and without analyzing which constitutional provisions may be violated; (3) The Minister under whose administration legislation being challenged is assigned must be cited as a party in proceedings seeking a final order declaring that legislation unconstitutional; (4) Where facts are common cause and only a pure question of constitutionality of a statutory provision is raised, it may not be strictly necessary for viva voce evidence to be led, though this will depend on the circumstances of each case; (5) Where there are factual disputes relevant to the constitutional challenge, parties must generally give evidence to enable the lower court to make findings of fact before referring the matter.

The court observed that: (1) The Constitutional Court Rules, 2016 (which came into operation after this referral was made) have not created new requirements but have simply incorporated sentiments expressed by the court in various previous cases; (2) Section 24 of the Constitutional Court Rules, 2016 provides for the procedure to be followed in referrals, including that where there are factual issues, the court must hear evidence and determine those issues, and where there are no disputes of fact, parties must prepare a statement of agreed facts; (3) There are cases where leading evidence will not be necessary, particularly where facts are common cause, and requiring evidence in such cases would serve no meaningful purpose; (4) Cases such as S v Njobvu, S v Banga, Sivako v AG and Douglas Mwonzora v The State, which stress the need for viva voce evidence, were decided in the context of applications for permanent stay where various factual matters such as length of delay, reasons for delay, prejudice and assertion of right to speedy trial must be traversed; (5) The present case was different from permanent stay applications as it concerned the constitutionality of a statutory provision rather than delay in prosecution.

This case establishes important procedural requirements for referrals to the Constitutional Court in Zimbabwe. It clarifies that: (1) While viva voce evidence is generally required in applications for referral (particularly applications for permanent stay), it may not be necessary where facts are common cause and only a pure constitutional question is raised; (2) A lower court referring a matter must properly analyze the facts, identify which specific constitutional provisions may be violated, and clearly formulate the constitutional question for determination; (3) A perfunctory application of the "frivolous or vexatious" test without proper analysis is insufficient; (4) The Minister responsible for administering the legislation being challenged must be cited as a party where a final order of unconstitutionality is sought; (5) Oral applications from the bar without supporting affidavits or evidence may be inadequate for constitutional challenges. The judgment emphasizes the importance of proper procedure in constitutional litigation and provides guidance to lower courts on their gatekeeping function in referrals to the Constitutional Court.