Levi Nyagura v Lanzani Ncube, N.O. and Others

In 2014, the University of Zimbabwe awarded a PhD to Mrs Grace Mugabe while the applicant was Vice-Chancellor. In February 2018, the applicant was arrested and charged with criminal abuse of office for allegedly improperly awarding the degree. The Prosecutor-General issued authority to prosecute to the third and fourth respondents, who were members of the Special Anti-Corruption Unit in the Office of the President and Cabinet. The applicant objected to their right to prosecute, raising constitutional questions about whether the authority granted was ultra vires sections 259 and 263 of the Constitution and whether it undermined prosecutorial independence. The Magistrates Court (court a quo) found that while the Prosecutor-General had no power under s 259 to grant prosecutorial authority, s 5(2) of the Criminal Procedure and Evidence Act allowed delegation to any qualified legal practitioner, and rejected the applicant's constitutional objections as frivolous and vexatious. The applicant then sought direct access to the Constitutional Court, alleging the court a quo's decision violated his right to equal protection of the law under s 56(1) of the Constitution.

• Whether the application was properly before the Constitutional Court
• Whether the court a quo properly engaged with s 175(4) of the Constitution regarding referral of constitutional matters
• Whether determination of constitutional questions on the merits by a subordinate court can form the basis for an application under s 85(1) alleging violation of the right to equal protection of the law
• Whether the applicant had invoked the correct remedy to challenge the court a quo's decision

The application was dismissed with no order as to costs.

When a subordinate court determines a constitutional matter on the merits rather than addressing whether a request for referral under s 175(4) of the Constitution is frivolous or vexatious, s 175(4) ceases to be applicable and the proper remedy against such determination is appeal, not direct access to the Constitutional Court under s 85(1) alleging violation of fundamental rights. A wrong judicial decision does not, in itself, constitute a violation of the right to equal protection of the law. The Constitutional Court can only exercise jurisdiction over matters that reach it through the procedures prescribed by the Constitution, and substantive and procedural requirements must be complied with.

The Court observed that the purpose of s 175(4) is to protect the Constitutional Court's process against frivolous or vexatious litigation. The provision does not authorize subordinate courts to determine constitutional matters on the merits; if they do so, they exercise jurisdiction under some other law. The Court noted that determination of a constitutional question by a subordinate court is itself a form of judicial protection, unless the court lacks jurisdiction, in which case the remedy is appeal. The Court also noted that no law provides protection to a litigant against the possibility of a judicial officer making a wrong decision.

This case clarifies the proper procedure for bringing constitutional matters before the Constitutional Court through the referral mechanism under s 175(4) of the Constitution. It establishes that when a subordinate court determines a constitutional question on the merits rather than referring it, the appropriate remedy is appeal, not direct access to the Constitutional Court under s 85(1) based on alleged violation of fundamental rights. The judgment emphasizes that s 175(4) applies only to determine whether a request for referral is frivolous or vexatious, not to allow subordinate courts to decide constitutional questions themselves. It reinforces the distinction between different remedies and procedures for constitutional litigation and the importance of procedural compliance in accessing the Constitutional Court.