Ricky Nelson Mawere and David Nyabando v The Central Intelligence Organisation

The applicants were employees of the Central Intelligence Organisation (C.I.O.), an organisation established in the President's Office for the protection of national security. In October 1998, they were suspended from duty following allegations of misconduct related to fraud in construction projects. The first applicant received a letter dated 10 November 1998 notifying him of suspension and that a Board would be convened to look into allegations of misconduct as defined in the Public Service (Disciplinary) Regulations 1992. The applicants appeared before a Disciplinary Board in January 1999 and were suspended without pay pending further inquiry. They faced criminal charges for fraud which were later withdrawn. After more than eight years of suspension, in December 2005, they were notified of a Board of Inquiry to be convened in January 2006. At the hearing in July 2006, the applicants' lawyer raised points in limine, including that their right to a fair hearing within a reasonable time had been violated. The Board dismissed these objections, prompting the filing of this constitutional application in August 2006.

• Whether the delay of more than eight years in dealing with the applicants' suspension violated their constitutional right to a fair hearing within a reasonable time guaranteed by s 18(9) of the Constitution
• Whether the Board of Inquiry constituted by the C.I.O. was covered by the expression 'court or other adjudicating authority established by law' in s 18(9) of the Constitution
• Whether the Public Service Regulations, 2000 applied to members of the C.I.O.
• Whether the disciplinary procedure adopted by the C.I.O. pursuant to the employment contract was 'established by law' for purposes of s 18(9) of the Constitution

The application was dismissed with no order as to costs.

The right to a fair hearing within a reasonable time guaranteed by s 18(9) of the Constitution of Zimbabwe only applies to determinations by courts or adjudicating authorities established by law. A Board of Inquiry established by the C.I.O. to conduct disciplinary proceedings against its members is not an adjudicating authority established by law where: (1) members of the C.I.O. are expressly excluded from the Public Service by s 14(e) of the Public Service Act; (2) the Public Service Regulations under which the Board was purportedly established do not apply to C.I.O. members; and (3) the incorporation of those Regulations into an employment contract does not constitute establishment 'by law' for purposes of s 18(9). Where there is no adjudicating authority established by law, the constitutional right under s 18(9) does not arise.

The Court observed that the effect of paragraph 2 of the employment contract, which aligned conditions of service to Public Service Regulations, was merely to create agreement that the disciplinary procedure applicable to C.I.O. members would be similar to that for Public Service members, but this did not and could not make C.I.O. members part of the Public Service—that could only be done by Act of Parliament. The Court also noted that all other issues debated in the application (including presumably the substantive question of whether the eight-year delay was unreasonable) fell away once the threshold issue of applicability of s 18(9) was determined against the applicants. The Court made no order as to costs specifically because the matter was determined on a basis not raised by the parties themselves.

This case is significant in Zimbabwean constitutional and administrative law for clarifying the scope of s 18(9) of the Constitution's guarantee of a fair hearing within a reasonable time. It establishes that this constitutional protection only applies to proceedings before courts or adjudicating authorities established by law, not to internal disciplinary processes of organisations that are not grounded in statutory authority. The case also clarifies the legal status of C.I.O. members, confirming they are expressly excluded from the Public Service and therefore not governed by public service legislation. It demonstrates that contractual incorporation of statutory procedures does not convert an internal disciplinary body into a statutory authority or bring it within constitutional protections applicable to statutory bodies. The judgment highlights the limits of constitutional rights in relation to employment relationships in security organisations and the importance of proper legal foundations for adjudicating bodies to trigger constitutional procedural protections.