Jennifer Williams and Nine Others v The State

The ten applicants were charged before a magistrate in Bulawayo with criminal nuisance as defined in section 46 of the Criminal Law (Codification and Reform) Act, initially read with paragraph 2(v) of the Third Schedule, later amended to paragraph 2(f). The allegations were that they unlawfully and with intent to cause public disorder displayed placards and distributed fliers along Leopold Takawira/9th Avenue in Bulawayo, thereby disturbing the free flow of both human and vehicular traffic. Before pleading, the applicants applied in terms of section 24(2) of the former Constitution for their matter to be referred to the Supreme Court (then sitting as the Constitutional Court), challenging the constitutionality of the provision under which they were charged and whether their prosecution violated their fundamental rights to liberty, protection of law, freedom of expression, and freedom of association and assembly. The magistrate granted the referral but did so without properly analyzing whether the application was frivolous or vexatious, and dealt inconsistently with whether the charge was under paragraph 2(v) or 2(f).

• Whether the matter was properly referred to the Constitutional Court in terms of section 24(2) of the former Constitution
• Whether the magistrate complied with her duty to determine whether the constitutional question raised was frivolous or vexatious before making the referral
• Whether section 2(f) of the Third Schedule of the Criminal Law (Codification and Reform) Act violated the applicants' constitutional rights
• Whether the allegations against the applicants established reasonable suspicion entitling the State to interfere with their right to liberty

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

A referral to the Constitutional Court under section 24(2) of the former Constitution requires the magistrate or presiding judicial officer to: (1) form an opinion as to whether the raising of the constitutional question is frivolous or vexatious; (2) state that opinion explicitly in the ruling; (3) analyze the facts on which the constitutional question is raised; (4) clearly formulate the constitutional question requiring determination; and (5) apply objective procedural and substantive standards in forming the opinion. The formation of the opinion, while denoting a subjective state of mind, presupposes compliance with a process in which objective procedural and substantive standards are observed and met. The opinion must be formed by reference to specific criteria, including knowledge of the ordinary and natural meaning of the words 'frivolous or vexatious' as the standard to be conscientiously and objectively applied to the facts. Where a magistrate fails to properly discharge these duties, the matter is not properly referred and the Constitutional Court is not properly seized with the matter.

The Court observed with concern that this was not an isolated case where a magistrate failed to properly deal with an application for referral to the Constitutional Court. The Court noted that despite having provided guidance in numerous previous judgments, magistrates continued to fail to follow the correct procedure. The Court suggested that there might be a need for remedial intervention by both the Judicial Service Commission and the National Prosecuting Authority in their respective capacities for the conscientisation of magistrates and prosecutors on these matters. This observation highlights a systemic problem in the lower courts' handling of constitutional referrals and calls for institutional capacity-building measures.

This case is significant in Zimbabwean constitutional law as it clarifies the procedural requirements for referrals from lower courts to the Constitutional Court under section 24(2) of the former Constitution. It establishes that the magistrate or presiding officer has a mandatory duty to form an opinion as to whether the constitutional question raised is frivolous or vexatious, and this opinion must be based on proper analysis of the facts and applicable constitutional provisions. The case highlights the importance of lower courts properly exercising their gatekeeping function in constitutional referrals. It also demonstrates the Constitutional Court's concern about the repeated failure of magistrates to properly apply referral procedures, calling for institutional intervention to address this systemic issue. The judgment reinforces earlier decisions such as Martin v Attorney-General 1993 (1) ZLR 153 (S), Jennifer Williams & Anor v Phathekile Msipa N.O. & Ors SC 22/10, and Douglas Togarasei Mwonzora & 31 Ors v The State CCZ 9/2015 on the same procedural requirements.