ADDRESS REDACTED
8 January 2024
To: Leader Of Party
Citizens Coalition for Change
11th Floor Old Mutual
Cnr 3rd Street and Jason Moyo
Harare
Dear Sir/Madam
Re: NOTICE OF ABSENCE OF JUDGES OF SECTION 166 OF CONSTITUTIONAL COURT JUDGES APPOINTED IN TERMS OF SECTION 177 OF CONSTITUTION.
1. I am Berias Brian Trust Mari ID 63-89****-L-04 a citizen of Zimbabwe by birth and in terms of section 35(3)(a) of constitution of Zimbabwe, I am entitled to the protection of the State from wherever I may be as a right in my capacity as citizen of Zimbabwe in addition to any other rights granted to me by law.
2. am currently living in Republic of South Africa.
3. I also have the following duties, in addition to any others imposed upon me by law (a) to be loyal to Zimbabwe; (b) to observe the Constitution and to respect its ideals and institutions; (c) to respect the national flag and the national anthem; and (d) to the best of my ability, to defend Zimbabwe and its sovereignty.
4. Furthermore I have the right in terms of section 67(1)(a) of constitution, to free, fair and regular elections for any elective public office established in terms of the Constitution or any other law.
5. I also have right in terms of section 67(2)(d) of constitution of Zimbabwe to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
6. I filed a court application with Constitutional Court of Zimbabwe to hear and determine a claim against a breach of my fundamental right to free fair and credible election to any
elective public office to which our constitution apply under case number CCZ 1 /24 and that makes me a Party to the dispute before court.
7. I approach you on the basis that in the elections held on 23 August 2023 you are a party that fielded party list candidates and submitted a Form VN5 listing your office bearers and that makes you a stake holder on the matter.
8. In terms of section 67(2)(d) of constitution you have a right collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause and
9. On this background I inform you that From 22 May 2020 Zimbabwe has no constitutionally constituted constitutional Court bench with judges appointed in terms of Zimbabwe constitution, and citizens of Zimbabwe without distinction on political grounds are the only people who that can resolve the matter and have a properly constituted constitutional court bench installed in Zimbabwe in order to then hear and determine my case in CCZ1/24.
BACK GROUND
10. Zimbabwe is a constitutional and democratic state and Member of United Nations.
11. In 2013 We the people of Zimbabwe by exercising our right to self determination in article 1(2) of United Nations Charter, came up with a constitution that we overwhelmingly voted for.
12. The constitution became the explicit expression of how we want to be governed.
13. It is not in dispute that section 2 of the constitution of Zimbabwe states the supremacy of constitution and binding obligations in the constitution that must be fulfilled by every person including the state and all its arms at every level.
14. It is also not in dispute that section 3(2) of constitution gives binding principles of good governance that include electoral system based on—(i) universal adult suffrage and equality of votes; (ii) free, fair and regular elections; and (iii) adequate representation of the electorate; The orderly transfer of power following elections; respect for the rights of all political parties; observance of the principle of separation of powers; respect for the people of Zimbabwe, from whom the authority to govern is derived; transparency, justice, accountability and
responsiveness, the fostering of national unity, peace and stability, with due regard to diversity of languages, customary practices and traditions.
15. Furthermore, in section 44, the constitution gives a duty to the State and every person, including juristic persons, and every institution and agency of the government at every level to
respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4 of Zimbabwean constitution and
16. In section 162 of the constitution it is stated that “Judicial authority derives from the people of
Zimbabwe and is vested in the courts; which comprise— (a) the Constitutional Court; (b) the Supreme Court; (c) the High Court; (d) the Labour Court; (e) the Administrative Court; (f) the magistrates courts; (g) the customary law courts; and (h) other courts established by or under an Act of Parliament and
17. Paragraph 2 of Sixth schedule to the Constitution of Zimbabwe States that “This Schedule prevails, to the extent of any inconsistency, over all other provisions of this Constitution”.
18. Where therefore I state with authority that Zimbabwe has not had a constitutionally constituted constitutional Court bench as defined in section 166 of Zimbabwe constitution from 22 May 2022 till now. The reasons being-
19. In terms of Rule 2(2) of Constitutional Court Rules of 2016 which is a statutory instrument made in terms of paragraph 18(4)(a) of Sixth Schedule to the constitution; a “Chief Justice” means the Chief justice of Zimbabwe appointed in terms of section 180 of the Constitution and
20. “Court” means the Constitutional Court established by section 166 of the Constitution and
21. Judge” means a judge or acting judge of the Court appointed in terms of section 177 of the Constitution sitting otherwise than in open court;
22. In terms of section 177(1)(a) of constitution “ a person is qualified for appointment as a judge of the Constitutional Court if he or she is a Zimbabwean citizen, is at least forty years old and has a sound knowledge of constitutional law and, in addition, possesses one of the following qualifications—(a) he or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English, and English is an officially recognised language.
23. Section 177(1)(a) differs with sections 178(1)(a) and 179(1)(a) by mere exclusion of preposition “is” and this means a person who is already serving a tenure as a judge cannot be a judge of constitutional court, whether as Acting Judge or substantive.
24. This is confirmed by the original section 186(1) of Constitution which stated as follows in part, “Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years”.
25. Even on the revised section 186(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen year.
26. This clears doubt in that a Judge of constitutional court is appointed on a separate and fresh tenure. He or she does not continue a tenure from other court appointment into constitutional court tenure.
27. From the definitions given for Chief Justice, Constitutional Court and Judge, non of these fit and suit Mr Luke Malaba, Mrs Elizabeth Gwaunza, Mrs Rita Makarau, Mr Paddington Garwe, Mr Ben Hlatshayo, Mrs Anne-Marie Gowora, and Mr Barrat Patel.
28. The above mentioned persons are Judges who were appointed as Supreme Court judges in terms of section 84 of former Constitution of Zimbabwe and serving a tenure in section 86 of old constitution.
29. In terms of section 84(3) of former constitution, the appointment of a judge in terms of the former section, whether made before, on or after the date of comencement of the Constitution of Zimbabwe Amendment (No. 4) Act, 1984, would be made for a fixed period and any judge so appointed would, notwithstanding that the period of his or her appointment had expired, sit as a judge for the purpose of giving judgment or otherwise in relation to any proceedings commenced or heard by him while he was in office.
30. Mr Luke Malaba was appointed Supreme Court judge in July 2001 and was born on 15 May 1951.
31. Mrs Elizabeth Gwaunza was appointed Supreme court judge in terms of section 84 of former constitution in 2002.
32. Ms Rita Makarau was appointed Supreme Court Judge in terms of section 84 of former constitution in 2006.
33. Mr Paddington Garwe was appointed as Supreme Court Judge in terms of section 84 of former constitution.
34. Ms Anne-Marrie Gowora was appointed Supreme Court Judge in terms of section 84 of former constitution in November 2011.
35. Mr Ben Hlatshwayo was appointed Supreme Court judge in terms of section 84 of former constitution on 22 May 2013
36. Mr Barrat Patel was appointed Supreme judge in terms of section 84 of former constitution on 22 May 2013 and was born on 16 April 1952.
37. In terms of section 86(3) of former constitution, the office of a judge of the Supreme Court or the High Court would not, without his or her consent, be abolished during his or her tenure of office.
38. By this binding provision of section 86(3) of former constitution, these persons in their capacity as public officers, were admitted into the new constitution in terms of paragraph 13 of Sixth Schedule to the Constitution in order for them to continue their tenures.
39. In terms of paragraph 13 of Sixth Schedule, any person who, immediately before the effective date, held or acted in a public office under the former Constitution continued to hold or act in that office, or the equivalent office under the new Constitution, on the same conditions of service until the expiry of his or her term of office under those conditions of service or until he or she resigns, retires or is removed from office in terms of the new Constitution or those conditions of service, as the case may be.
40. All the listed above persons were public officers with defined tenure in section 86 of former constitution, if the word “continue” retains its dictionary meaning, then there is no way a person who is continuing a tenure would suddenly find himself or herself ridding on amendments of another tenure which was never part of his fixed tenure in section 86 of former constitution and claim to continue his own section 86 of former constitution under section 186 of new constitution, whether amended or not.
41. It is critical to note that in terms of paragraph 2 of Sixth Schedule, the Schedule prevails, to the extent of any inconsistency, over all other provisions of the Constitution. It therefore follows that, no interpretation of section 186 of new constitution has effect on any public officer from former constitution who was brought into new constitution by paragraph 13 of Sixth Schedule, outside what is stated by paragraph 13 of Sixth Schedule.
42. In terms of paragraph 3(1) of Sixth Schedule, these persons continued their tenures in section 86(3) of former constitution before section 186 of new constitution came into effect.
43. At no time did these persons serve a tenure under section 186 of new constitution and at no time did they resign or retire from their section 86 of former constitution’s tenure.
44. In that regard, section 177(1)(a) which is clear and unambiguous, does not apply to them for any appointment as Judges of Constitutional Court.
45. Judges of constitutional court are appointed on a fresh tenure and do not continue tenures from other court appointments into Constitutional court.
46. Instead, by paragraph 18(5) Sixth schedule the Supreme Court of Zimbabwe, the High Court of Zimbabwe, the Labour Court and the Administrative Court, as established immediately before the effective date, (that is to say 24 August 2013 the day first the president under new constitution was sworn in), were constituted respectively as the Supreme Court, the High Court, the Labour Court and the Administrative Court under the new constitution, and any decision of these courts given before the effective date had effect accordingly.
47. These persons were part of the Supreme Court as was constituted immediately before the effective date.
48. In terms of paragraph 18(2) of Sixth Schedule, Notwithstanding section 166, for seven years after the publication date, the Constitutional Court consisted of—(a) the Chief Justice and the Deputy Chief Justice; and (b) seven other judges of the Supreme Court; who would sit together as a bench to hear any constitutional cases.
49. Because paragraph 18(2) of Sixth Schedule is a provision of Sixth Schedule it means it became effective on publication date as stated by paragraph 3(1) of Sixth schedule and b paragraph 2 of Sixth Schedule it prevails over any other provision of constitution on jurisdiction of constitutional court.
50. Some of these persons were part of the initial bench constituted in terms of paragraph 18(2) and presided over a case CCZ1/13 with judgement reference Const. Application No. 146/20.
51. It must be noted that this form of constitutional court sat as such on 31 May 2013 before the effective date.
52. This clears doubt that, before section 166, 177, 180, 181 or 186 became effective, these Supreme court judges had started to continue their tenure and had started to sit as temporary constitutional court without them being judges of constitutional court and in the absence of a section 166 constitutional court.
53. In terms of par18(3) of Sixth Schedule, if a vacancy on the Constitutional Court of paragraph 18(2) of Sixth Schedule was to occur in the first seven years after the publication date, it was a must that it is filled by another judge or an additional or acting judge, as the case may be, of the Supreme Court.
54. Of course vacancies arose in this paragraph 18(2) of Sixth Schedule constitutional court and
55. In terms of original section 180(2), whenever it was necessary to appoint a judge, the Judicial Service Commission would—(a) advertise the position; (b) invite the President and the public to make nominations; (c) conduct public interviews of prospective candidates; (d) prepare a list of three qualified persons as nominees for the office; and (e) submit the list to the President; whereupon, subject to subsection.
56. When Justice Chidyausiku retired in 2017, he left a vacancy of Chief Justice of paragraph 18(2) Of Sixth Schedule, and by paragraph 18(3) of Sixth Schedule, only a judge of Supreme court would fill the post.
57. Mr Luke Malaba ,Ms Rita Makarau and Mr P Garwe applied for this post in their capacities as Judges of Supreme Court.
58. In the process, Mr Luke Malaba got the post of Chief Justice of paragraph 18(2) of Sixth Schedule and not Chief Justice of Zimbabwe because only a section 166 constitutional Court judge appointed in terms of section 177, could be Chief Justice of Zimbabwe after the effective date.
59. It was a known fact that he was being interviewed for a post in paragraph 18(2) constitutional court bench.
60. He took oath of office for this post and He sat as paragraph 18(2) of Sixth Schedule Constitutional Court judge which was comprising of only Supreme court judges and gave judgements in that capacity.
61. At no time after, did Mr Luke Malaba got judicial oath of section 166 constitutional court judge.
62. The prescribed period of 7years ended on 22 May 2020 and the Judiciary authority of the paragraph 18(2) constitutional court ended then.
63. Only a section 166 constitutional court remained and By section 177(1)(a) only a person who has been a judge could be appointed as Constitutional Court judge, whether Acting or substantive.
64. These above mentioned persons were bound by paragraph 13 of Sixth Schedule and could not assume any other tenure before they retire under the section 86 of former constitution conditions.
65. Because Sixth Schedule was voted for by citizens, no amendment of constitution without referendum can give judicial authority to any of these judges as section 166 judges.
66. Section 162 of constitution is clear in that, judicial authority of Zimbabwe is derived from people of Zimbabwe and vested in courts.
67. By binding section 3(2)(e) principle of separation of powers, the president cannot confer judicial authority by any letter neither can parliament confer judicial authority by merely amending constitution on judicial authorities.
68. I am aware of a court challenge on whether these judges qualified for benefits of amendments in section 186 under KIKA versus MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS under case HC2128/21 and judgement HH 264/21.
69. Mr Luke Malaba is referred as Second Respondent in the matter
70. MRs Elizabeth Gwaunza is third Respondent.
71. Mr Paddington Garwe is fourth Respondent.
72. Mrs Rita Makarau is Fifth Respondent.
73. Mrs Anne-Marie Gowora is Sixth Respondent.
74. Mr Ben Hlatshwayo is seventh Respondent.
75. Mr Barrat Patel is Eighth Respondent and
76. Ms Antonia Guvava is ninth Respondent.
77. These judges never filed any response to the question whether amendment of section 186 applied to them or not.
78. A judgement was handed over by a full bench of High Court and declared that “The second respondent in HC 2128/21 who is also the second respondent in HC 21661/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on I5 May 2021 at 0400 hours. 2. The extension of the length of time in the office of the judge beyond the age of70 years provided for in section 186 of the constitution does not apply to the second to fourteenth and the eighteenth respondents.3 . There shall be no order as to costs”.
79. In that case amendments of section 186 did not apply by operation of law and the law referred to is paragraph 13 of Sixth Schedule whose effect in terms of paragraph 2 of Sixth schedule prevails, to the extent of any inconsistency, over all other provisions of the Constitution.
80. These judges mentioned above regrouped and assumed posts of constitutional court judges after invalid appointments by executive.
81. A litigant was introduced to challenge the High Court Judgement mentioned above under case CCZ13/21 and Judgement CCZ07/21.
82. From the judgement, that is available at Constitutional Court of Zimbabwe Website it can be seen that, Mrs Elizabeth Gwaunza, Mr P Garwe, Ms R Makarau, Ms AM Gowora, Mr B Hlatshawayo, Mr B Patel and Ms A Guvava sat purporting to be Constitutional court in order to hear a matter brought by Mr MARX MUPUNGU.
83. Mr MARX MUPUNGU’s application was made in terms of s 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.
84. It can easily be read by any person who get hold of two judgements, HH264/21 and CCZ07/21 that respondents 3, 4, 5, 6,7,8 and 9 in HH 264/21 later on at as Constitutional court to hear and determine if amendment to 186 of constitution applied to themselves.
85. It can also be read from Judgement HH264/21 that these judges while they were litigants did not submit any response in High Court record.
86. The listed judges then gave an order as follows “It is declared that paras 1 and 2 of the operative part of the judgment of the High Court (No. HH 264-21) are orders of constitutional invalidity within the contemplation of s 175(1) of the Constitution and have no force or effect unless confirmed by this in terms of s 175(3) of the Constitution. It is hereby ordered that the aforesaid orders of the High Court, being orders of constitutional invalidity, are not confirmed and are hereby set aside”.
87. Actually this action is a mockery to democracy. No where in the world it has ever happened that a litigant assumes a post of higher court and then give a response in the form of a judgement
88. What challenges and make this judgement invalid and of no force is paragraph 13 of Sixth Schedule.
89. It overrides sections 175 which anyone may want to interpret anyhow in that-
a. We do not need any provision of constitution to establish if the listed judges could extend their tenure by amendment of section 186. The wording of paragraph 13 is final.
b. We do not need to read any other provision to see if these judges could assume a non renewable tenure in section186 whilst their section 86 subsist. Paragraph 13 of Sixth schedule is clear in that they continued their section 86 of former constitution until they retire under section 86 of former constitution.
c. We do not need to inquire if section 175 was required to confirm or not because paragraph 13 of Sixth Schedule overrides it.
90. It will be improper if I do not direct you to CCPR/C/GC/32 on FAIR AND PUBLIC HEARING BY A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL
91. Zimbabwe is bound by this and in terms of section 46(1)(c) of constitution it is a must and not an option , for any court or tribunal, to consider CCPR/C/GC32.
92. Take note of its paragraph 18 and I quote, “The notion of a “tribunal” in article 14, paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence, guarantees access to such tribunals to all who have criminal charges brought against them. This right cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision. Similarly, whenever rights and obligations in a suit at law are determined, this must be done at least at one stage of the proceedings by a tribunal within the meaning of this sentence. The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to an extent that would undermine the very essence of the right.
93. It will be absurd for the state whose constitution in section 162(a) states that “Judicial authority derives from the people of Zimbabwe and is vested in the courts, which comprise—(a) the Constitutional Court” then parliament without going to referendum claim to have an amendment of Constitution to have judges appointed by President without public interview.
94. A judge appointed by president without public interview is not independent neither does he or she has judicial authority of Zimbabwe.
95. I further quote paragraph 19 of same CCPR/C/GC32 which states “The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law”.
96. The great news about paragraph 19 of CCPR/C/GC 32 is
a. It is binding
b. The right requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.
c. The requirement of independence referred to and in particular, to the procedure and qualifications for the appointment of judges is strictly as per constitution
97. It must clear any doubt that my right to stand before judges appointed in terms of s177 of constitution is absolute and not subject to any limitations or discussion of eligibility of above listed judges as independent and impartial judges with judicial authority.
98. While Civil and Political rights in ICCPR are individual rights and no matter the number of person having same opinion, it can never change the fact that each person has to be protected of his or her right individually.
99. There is nothing that can be negotiated over a state obligation to give an absolute right.
100. It has to happen.
101. Article 2.3 of ICCPR clearly states that state parties undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
102. It then follows that the provision of competent judicial authority as provided by legal framework of Zimbabwe is a state obligation in a UN treaty and subject to UN enforcement.
103. My claim in the said case CCZ1/24 relate to rights also protected by article 25 of ICCPR.
104. By reading from paragraph 2 of CCPR GC 25 it can be read that “The rights under article 25 are related to, but distinct from, the right of peoples to self- determination. By virtue of the rights covered by article 1 (1), peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs. Those rights, as individual rights, can give rise to claims under the first Optional Protocol”.
105. Now it is put before you, that Zimbabwe is not a member of First Optional
Protocol to the International Covenant on Civil and Political Rights.
106. As reported by one of the observer missions that observed the August 2023 elections that there is no provided remedy after internal process has failed for individuals in
Zimbabwe, it is clear in that First Optional Protocol is not a route for Zimbabwean individuals.
107. Zimbabwe signed the Rome Statute on 17 July, 1998 but has not ratified it yet. This means again an individual citizen of Zimbabwe has no remedy at International Court of Justice for an individual right.
108. However that does not remove the obligation of the state in article 2.3(a) of ICCPR neither could this bar me as party to a dispute before court to approach UN Security Council to enforce the undertaking.
109. At the bottom end, the provision of a court by state is not a matter of one’s opinion but a duty obligation that has to happen.
110. Now that I have a matter before a constitutional court and I have a right protected by section 69(2) of Zimbabwe constitution which states as follows, “in the determination of civil rights and obligations, every person has aright to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law” and
111. In terms of section 86(3)(e) of Zimbabwe constitution, no law can limit right in section 69(2) of constitution and no one can violate it.
112. It is for this reason, I bring to your attention to resolution of World Conference on Human Rights, Vienna, 1993, Vienna Declaration and Programme of Action, paragraph 4,
113. Which reads, “The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community.”
114. I refer you further to CCPR GC31 paragraph 15, which reads , “Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively
assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy”
115. After putting it clear that those in place have no authority, then, it becomes clear that only a referendum can then give requisite judicial authority to any bench that can be installed.
116. It is the responsibility of president of Zimbabwe in terms of section 110(2)(f) of Zimbabwe constitution to call for referendums on any matter in accordance with the law; and where judicial authority is missing in the whole constitutional court bench, then only people of Zimbabwe can restore it and in order to restore it you need a referendum to get direct authority of each citizen of Zimbabwe without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
117. However, a president of Zimbabwe is one who in terms of section 94(1) of constitution, assume office when he/she takes, before the Chief Justice or the next most senior judge available, the oath in the form set out in the Third Schedule to the Zimbabwean constitution
118. For reasons given above , from 22 May 2020, Zimbabwe has not had a
Chief Justice of Zimbabwe appointed in terms of law and
119. In terms of section 181(1) of Zimbabwe constitution, If the office of Chief Justice is vacant or if the office holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are vacant or both office-holders are unable to perform their functions the next most senior judge of the Constitutional Court acts as Chief Justice.
120. Again, for reasons above, there is no person appointed as deputy Chief Justice or a judge of constitutional court in terms of law.
121. The ones in offices are political appointees who assumed the bench illegally.
122. It therefore follows that after August 2023, Zimbabwe cannot have a
constitutional president without first having to rectify the issue of Constitutional court bench.
123. Section 94 uses the words “must take” in reference to the oath of office of president, it then follows that section 94 puts an obligation.
124. In terms of section 2(2) of constitution, “obligations imposed by the Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them”.
125. I do not need to prove legitimacy of any person claiming to be president of Zimbabwe after 26 August 2023. All I need is to prove is the absence of Chief Justice and constitutional court judges appointed in terms of section 177 who can possibly solemnize the president.
126. The rest of disputes will not matter if after we address everything but remain without a proper Constitutional court bench. Any person will remain illegitimate president without a proper oath of office before Chief Justice or a s166 Constitution Court Judge .
127. Without a Judge of constitutional court, no one has judicial authority to act as Chief Justice and swear in a president.
128. It then follows that no one can call for a referendum to restore judicial authority in terms of section 110(2)(f) until the constitutional court bench is properly constituted.
129. On this background, I refer you to UN Electoral Assistance: Supervision, Observation, Panels and Certification policy, “United Nations Focal Point for Electoral Assistance Matters Ref. FP/01/2013 as revised”.
130. In its paragraph 15 on definition of supervised election it states that, “The term “supervision” is used to refer to situations in which the UN is mandated to supervise key aspects of an electoral process. It was originally developed during the UN’s involvement in referenda and elections in the context of General Assembly mandates related to decolonisation during the 1950s and 1960s. In that historical context, supervision also varied according to the specific case, but often had the objective of ensuring that the right to self-determination was exercised. In implementing these supervision mandates, the UN often established a supervision commissioner or a small panel (commission) whose role and authority could include: being consulted on, reviewing, and giving an opinion on, the electoral legal and procedural framework; being consulted on, and sometimes approving, steps in the management of electoral processes; and reporting or making some assessment of the vote to the mandating UN legislative organ. In such contexts, the progress of the election may have been contingent upon the UN’s endorsement of each phase of the electoral process. Where the UN might not have been satisfied with electoral procedures or their implementation in a particular phase, the electoral management body (EMB) conducting the process may have been expected to act upon UN recommendations and make any necessary adjustments”.
131. Where it has been established that there is no constitutionally constituted constitutional court bench and,
132. That the judicial authority of Zimbabwe is derived from people of Zimbabwe and vested in court,
133. It then follows that a referendum has to be called.
134. However a referendum can only be called by a president who has taken oath of office before a Chief Justice or a Judge of Constitutional Court,
135. It then follows that in the absence of a president with an oath of office, then no one can call for a referendum. Thereby threatening the right of people of Zimbabwe to self determination.
136. By definition of supervised election, in the UN Electoral Assistance: Supervision, Observation, Panels and Certification policy, the situation in Zimbabwe perfectly matches the definition and requirements for referendum to get judicial authority.
137. What stands to be done is to be given mandate by Security Council.
138. In paragraph 16 of the United Nations Focal Point for Electoral Assistance Matters Ref. FP/01/2013 as revised policy, it is stated that “UN electoral supervision requires a mandate from the General Assembly or the Security Council”.
139. It is put before you that, the matter in dispute is before court and the right in section 69(2) of Zimbabwe constitution must be dealt with speedy and within reasonable time.
140. The General Assembly sits once every year but Security council sits any time, the right I want to vindicate cannot be vindicated by going to General Assembly.
141. Again, the issues I am raising are prima facie and verifiable. Above all the constitution of Zimbabwe which is the explicit expression of people of Zimbabwe in their exercise of right to self determination, makes each and every item mentioned in notice, binding.
142. No judicial determination is required on a binding obligation to provide a constitutional court bench in accordance with of state.
143. All what is required is to implement.
144. On this background please, put my notice before your membership for the consideration of the Security council with the objective of giving a mandate to UN to supervise and organise a referendum to restore judicial authority in constitutional court of Zimbabwe.
145. Please find my National Identity Card to prove my citizenship, the Court application and founding affidavit to establish parties to the dispute and elements of dispute from Registrar of Constitutional court under case CCZ1/24.
146. Further take note that I shall be guided by articles 33 and 37 of UN Charter to approach Security Council over this matter now that I am officially part to a dispute that threatens the authority of Zimbabwe state.
147. Further take note that I am also guided by CCPR GC/ 31 Paragraph 2 which reads
“.While article 2 is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty. In this connection, the Committee reminds States Parties of the desirability of making the declaration contemplated in article 41. It further reminds those States Parties already having made the declaration of the potential value of availing themselves of the procedure under that article. However, the mere fact that a formal interstate mechanism for complaints to the Human Rights Committee exists in respect of States Parties that have made the declaration under article 41 does not mean that this procedure is the only method by which States Parties can assert their interest in the performance of other States Parties. On the contrary, the article 41 procedure should be seen as supplementary to, not diminishing of, States Parties’ interest in each others’ discharge of their obligations. Accordingly, the Committee commends to States Parties the view that violations of Covenant rights by any State Party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States Parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest”.
148. In this regard take note that Zimbabwe is a separate being from any individual or group of individuals. She has capacity to act on her own and has duty to fulfil her duties on her own.
149. I am aware of elements among us who are bend on assuming the status of Zimbabwe or better citizen of Zimbabwe than us all, were it is easy for them to label others puppets of other states and if other states they prefer to label enemy of Zimbabwe give comment on human right matter they are called names.
150. I have put paragraph of CCPR 31 which is a treaty that was signed and ratified by Zimbabwe herself. Any member states of this treaty cannot wake up being enemy of Zimbabwe for doing what Zimbabwe signed for.
151. If any member of ICCPR is an enemy of Zimbabwe then it is Zimbabwe that joined a treaty which has its enemy. It cannot run away from responsibility of treaty on that basis.
152. Any such labelling of me of such acts is violation of my rights.
153. It is us Zimbabweans who put our collective expression on how we want to be governed and us who let the situation be as it is.
154. If fingers are to be pointed, let them be pointed to “patriotic” citizens of Zimbabwe who had a duty in section 35 (4)(b) but did not observe the sanctity of our beloved constitution and let things to this stage.
155. As I pursue the calling of a referendum, be free to organise yourselves and share views on how we can collectively restore our judicial authority which will not only serve my interests but interest of all.
156. I have seen state apparatus being used to enforce private institution’s constitutions without any violence, it means as a people we can also carry our “congress”/ referendum same way private institution carry theirs.
157. Our Defence forces are well disciplined and I also cited the Commander to my case so he is informed of every item in my claim and be able to perform his duties in constitution.
158. For avoidance of doubt in terms of section 211(3) of constitution, the Defence Forces must respect the fundamental rights and freedoms of all persons and be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution and
159. In terms of section 233(b) sovereignty and interests of the people need to be promoted and protected.
160. In that regard I expect our defence force to protect our state and its interests and everyone of us to obey lawful instructions from our defence forces. It is us who installed them and they serve us.
161. If at any juncture there is a feeling by the Commander of defence force that the security of state is under threat he must take action but should not act on propaganda. My claim is legitimate and has laid down channels and must not give vultures of an opportunity to threaten our sovereignty.
162. In our diversity we still have collective duty to remedy our governance.
163. What remains problematic is collapse of all state arms without leaving an option to fall on and that calls for extra care.
164. I will send notices almost the same like this to all stakeholders, Regional Bodies and UN security Council.
165. In the absence of legitimate representative of Zimbabwe with Executive Authority of Zimbabwe as prescribed in section 88 of constitution or legislative authority as prescribed in section 117 or judicial authority as prescribed by section 162, in my capacity as citizen of Zimbabwe with a case before a constitutional court, I have better capacity to bring this matter before any forum.
166. In this regard be informed
Your faithfully
Berias Brian Trust Mari
[email protected]
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