Joseph Chani v Justice Hlekani Mwayera and Others

The applicant was convicted of murder in the High Court and sentenced to 18 years' imprisonment. He was second-in-command of security forces protecting Chiadzwa Diamond Mine. On 23 September 2011, four brothers were arrested in diamond fields and detained in an open wire enclosure. At 22:00 hours that day, one brother (the deceased) was found dead, lying face down in the enclosure. The Zimbabwe Republic Police attended the sudden death scene and investigations were carried out. The applicant alleged that the sudden death docket was sent to the prosecutor instead of the resident magistrate for assessment under the Inquests Act. He also alleged that during trial, the State led 13 witnesses while he was allowed only one witness. The applicant brought a chamber application for leave for direct access to the Constitutional Court, alleging violations of his rights to administrative justice (s 68(1)) and fair trial (s 69(1)) of the Constitution. The matter had previously been dismissed on appeal by the Supreme Court.

• Whether the application for direct access to the Constitutional Court was properly before the Court
• Whether it was in the interests of justice to grant direct access
• Whether the alleged irregularities in inquest proceedings violated the applicant's right to a fair trial under s 69(1) of the Constitution
• Whether the alleged administrative conduct violated s 68(1) of the Constitution
• Whether the applicant's complaints raised constitutional matters or merely factual disputes
• Whether the Constitutional Court could inquire into a final decision of the Supreme Court on non-constitutional matters
• Whether the applicant should have utilized remedies under the Administrative Justice Act instead of approaching the Constitutional Court directly

The application for leave for direct access to the Constitutional Court was dismissed with costs.

The binding legal principles established are: (1) An applicant for direct access to the Constitutional Court must explicitly state in the founding affidavit why it is in the interests of justice for direct access to be granted, as required by Rule 21(3)(a) of the Constitutional Court Rules. (2) Merely alleging infringement of constitutional rights does not necessarily mean that the issue for determination is a constitutional matter - the Court must satisfy itself that the issue involves interpretation, protection or enforcement of constitutional guarantees. (3) Fair trial rights under s 69(1) of the Constitution only accrue to a person once they are charged with an offence and become an accused person. (4) Purely factual matters and disagreements with a court's assessment of facts do not amount to constitutional matters and do not engage constitutional rights. (5) The Constitutional Court cannot inquire into or alter final decisions of the Supreme Court on non-constitutional matters. (6) Where legislation (such as the Administrative Justice Act) has been enacted to give effect to constitutional rights under s 68 of the Constitution, litigants may not bypass that legislation and rely directly on the Constitution without challenging the legislation as falling short of the constitutional standard - the constitutional provision takes a back seat once enabling legislation is enacted.

The Court made several observations of broader significance: (1) The Constitution guarantees protection under a legal system that is fair but not infallible - judicial officers can commit errors of judgment, but a wrong judicial decision does not violate fundamental rights because appeal procedures are available as remedies. (2) The purpose of s 85(1) of the Constitution is to allow litigants as much freedom of access to courts on questions of violation of fundamental rights with minimal technicalities. (3) An application stands or falls on its founding affidavit. (4) The reason the prosecutor assessed the sudden death docket was merely to establish whether an inquest had to be done in light of the cause of death, and had more to do with the deceased than with the applicant. The Court also cited with approval South African jurisprudence on constitutional litigation, particularly the principle that disagreement with a court's assessment of facts does not constitute a breach of the right to a fair trial.

This case is significant in Zimbabwean constitutional jurisprudence for several reasons: (1) It clarifies the test for granting direct access to the Constitutional Court, emphasizing that applicants must explicitly demonstrate why it is in the interests of justice to grant direct access. (2) It distinguishes between mere allegations of constitutional violations and actual constitutional matters, holding that not every reference to constitutional provisions or alleged infringement creates jurisdiction in the Constitutional Court. (3) It establishes that fair trial rights under s 69(1) only accrue once a person is charged with an offence and becomes an accused person. (4) It reinforces the principle that factual disputes and disagreements with findings of fact by lower courts do not constitute constitutional matters. (5) It confirms that the Constitutional Court cannot review final decisions of the Supreme Court on non-constitutional matters. (6) It establishes the subsidiarity principle that where legislation (such as the Administrative Justice Act) gives effect to constitutional rights, litigants must utilize those statutory remedies rather than relying directly on constitutional provisions. (7) It demonstrates the Court's approach to preventing the Constitutional Court from becoming a general court of appeal through the guise of constitutional challenges.