BY CHARLES LAITON
A HARARE landlord Almerico de Gouevia, who is facing allegations of killing his tenant Joaquim de Sousa over payment of rentals, has approached the Constitutional Court (ConCourt) challenging the constitutionality of the presence of assessors on the High Court bench hearing his matter.
De Gouveia’s trial was supposed to have commenced in November 2018 before High Court judge Justice Tawanda Chitapi and two assessors, but through his lawyer Edley Mubaiwa, he filed a notice of opposition challenging the constitutionality of the composition of the court.
In his submission, Mubaiwa said section 162 of the Constitution of Zimbabwe (2013) provides that judicial authority is vested in the courts which include the
High Court, while section 163 provides that the Judiciary of Zimbabwe consists, in respect of the High Court, of the judge president and other judges of that
court, but does not include assessors.
“Section 170 of the Constitution of Zimbabwe provides that the High Court consist of the chief justice, the deputy chief justice, the judge president thereof
and such other judges of the High Court as may be appointed from time to time,” he said.
“Section 56(1) of the Constitution of Zimbabwe entitles the accused person (De Gouveia) the right to protection of the law, while in section 69 thereof, he is
entitled to the right to be tried before a court established by law.”
However, Mubaiwa said section 3(b) of the High Court Act (Chapter 7:06) provides that for purposes of hearing a criminal trial, the High Court shall only be
dully constituted if it consists of a judge of the High Court and two assessors, which section he said is in violation of the Constitution.
“In terms of sub section (2) of section 10 of the High Court Act, the assessors are empowered to make findings of fact upon which a determination is made are
those of the majority of the three members of court, meaning assessors may outvote a judge and a determination, therefore, becomes based on the findings made
by assessors,” he said.
After hearing Mubaiwa’s submissions, Justice Chitapi referred the matter to the ConCourt for determination on (a):- whether paragraph (b) of section 3 of the
High Court Act as read together with subsection (2) of the Section 10 thereof is inconsistent with section 170 of the Constitution of Zimbabwe in so far as it
provides for assessors to be part of the composition of the High Court in a criminal trial.
The judge also said he wants the ConCourt to determine whether criminal proceedings before the High Court as comprised of assessors should constitute an
unlawful violation of accused person’s right to the protection of the law as provided for in section 56(1) of the Constitution of Zimbabwe; or that the accused
should be tried before a court established by law as provided in section 69 of the Constitution.
On Wednesday this week, the matter appeared before a full Concourt bench headed by Deputy Chief Justice Elizabeth Gwaunza, but it was removed from the roll
after it emerged that some parties had not been cited in the application, such as the attorney-general Prince Machaya and prosecutor-general Kumbirai Hodzi,
being interested parties.
The court ordered that the record be referred back to the High Court for corrections.
The State was represented by Tapiwa Mapfuwa and Editor Mavuto.