Nature and purpose of criminal law
The criminal law is a set of rules to regulate conduct of people within society. Those who commit crimes are seen as being a social menace. They cause instability and disorder within society and their behaviour cannot be allowed to continue unchecked.
The main purpose of the criminal law is to prevent socially intolerable conduct or, at least, to hold it within socially acceptable limits. By threatening punishment the criminal law tries to suppress anti-social conduct likely to disrupt society.
Burchell and Milton in Principles of Criminal Law at p 2:
“The criminal law is a social mechanism that is used to coerce members of society, through threat of pain and suffering, to abstain from conduct which is harmful to various interests of society. Its object is to promote the welfare of society and its members by establishing and maintaining peace and order.”
Fair trial and presumption of innocence
Section 69 of Constitution provides that every person accused of a crime has a right to a fair and public trial within a reasonable period of time before an independent and impartial court.
Section 70(1)(a) provides that a person accused of a crime has the right to be presumed innocent until proved guilty. Section 18(1) of the Code provides that generally subject to limited exceptions a person may not be found guilty of a crime under the Code or other enactment each essential element of the crime is proved beyond a reasonable doubt.
The adversarial system
The criminal justice system in Zimbabwe is basically the adversarial or accusatorial system. Under this system the prosecutor presents the case against the accused and the defence presents the defence and an impartial judicial officer decides whether the accused person is guilty or not on the basis of the evidence as a whole. Where, however, the accused is not legally represented, the role of the judicial officer is to ensure that the accused receives a fair hearing by appraising him of his or her rights at the different stages of the proceedings. In the most serious and complex cases, such as murder, the accused who cannot afford legal representation will be provided with a defence lawyer paid for by the State.
Jurisdiction of criminal courts
Criminal cases are tried in either the Magistrate Courts or the High Court. The High Court deals with the most serious criminal cases, such as murder, treason, armed robbery and large scale frauds. Only the High Court has power to impose death penalty. It should be noted that in a murder case, even if the accused pleads guilty, the High Court will enter a plea of not .guilty and a full trial will take place
Lower ranking Magistrates Courts deal with less serious cases, such as assaults and thefts, but highest ranking Magistrates Courts, the Regional Courts, deal with more serious cases, such as rape.
Appeals from the Magistrates Courts against conviction, conviction and sentence or sentence are heard by the High Court. There is a further right of appeal against the decision by the High Court on appeal from the Magistrates Court to the Supreme Court.
Where matters are tried in the High Court there is a right of appeal to the Supreme Court. Where in a case of murder the High Court imposes the death penalty, the matter automatically goes on appeal to the Supreme Court.
Reviews of Magistrates Court cases
Many cases not taken on appeal. As a safeguard, judges of the High Court scrutinise all cases which have attracted sentences above certain limits. The judges will examine the correctness of the verdict and sentence imposed to make sure that the decision was in accordance with substantial justice.
High Court will review all cases where the sentence is over 12 months or a fine exceeding level 6. ($300). [Section 57 Magistrates Court Act [Chapter 7:10]]
Cases in which the sentence is from 3 to 12 months or a fine exceeding level 4 ($100) but not exceeding level 6 ($300), the case will be scrutinised by a Regional Magistrate.
[Section 58 Magistrates Court Act [Chapter 7:10]]
The principle of legality
A fundamental requirement of our system of justice is that there must be adherence to the principle of legality. This principle encompasses an elementary notion of justice and is safeguard against arbitrary and oppressive government.
This principle lays down that the Criminal Law should be as fixed and certain as possible. A criminal law must be formulated with sufficient precision to enable the citizen to regulate his or her conduct if he or she so wishes so as avoid violating the law. The citizen must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law. This is connected with the principle of fair warning about what is prohibited and what is not. This means that too wide, broad and vague criminal laws can be struck down as unconstitutional. The criminal law must not be so widely expressed that its boundaries are a matter of conjecture nor may it be so vague that the people affected by it must guess at its meaning. If it does it will fail to meet the test of validity. A subject must be able to foresee to a reasonable degree the consequences which his or her chosen course of conduct might entail.
In S v Chimakure, Kahiya & ZimInd Publishers (Pvt) Ltd 2013 (2) ZLR 466 (S) he Supreme Court had this to say:
A criminal law must define the essential elements of the crime and the law must not be unconstitutionally vague. The rationale underlying the principle of unconstitutional vagueness of a statute is that it is essential in a free and democratic society that people should be able, within reasonable certainty, to foresee the consequences of their conduct in order to act lawfully. This is a fundamental element of law, order and therefore peace. The second component of the doctrine is based on the belief that if arbitrary and discriminatory enforcement is to be preventable laws must provide explicit standards for those who apply them. The discretion of those entrusted with law enforcement should be limited by clear and explicit legislative standards.
This is especially important in the use of criminal law, because people are potentially liable to deprivation of personal liberty if their conduct is in conflict with the law. A vague law impermissibly delegates basic policy matters to police officers, prosecutors and judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. So the legislature is prevented from passing arbitrary and vindictive laws.
The standard is one of sufficient clarity. It is not one of absolute clarity.
In S v Mpofu & Anor, CC-5-2016 at para 8 the court said this:
“The right to protection of the law entails that the law be expressed in clear and precise terms to enable individuals to conform their conduct to its dictates. A law may not be so widely expressed that its boundaries are a matter of conjecture nor may it be so vague that the people affected by it must guess at its meaning. If it does it will fail to meet the test of validity. A subject must be able to foresee to a reasonable degree the consequences which his chosen course of conduct might entail. As it was put in The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245 at 271 (para 49):-
‘… a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.’ ”
The principle of legality provides that there must be no retrospective application of the Criminal Law. If the legislature creates a new criminal offence it can only be applied to conduct after the new crime came into operation. Section 70(1)(k) of the Constitution thus provides that a person may not be convicted of an act or omission that was not an offence when it took place. Section 70(1)(l) provides that a person may not be convicted of an act or omission that is no longer an offence.
There are also provisions in section 70 dealing with where the sentence for an offence has been increased or reduced after a person has committed the act or omission. Thus section 70(1)(m) provides that a person accused of an offence has the right “to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.” Thus if the sentence has been increased after the conduct, the sentence applicable at the time of the conduct will be imposed. If on the other hand the sentence has been decreased after the conduct, the lesser sentence will be imposed on the person found guilty of the offence.
See S v Mapanzure HH-41-11.
The principle of legality also prescribes that only the legislature may create a new crime or repeal an existing crime. Judges may not create new crimes, although the courts can declare an existing crime to be void on the basis that it violates the Constitution.
Constitutionality of crimes under 2013 Constitution
The Criminal Law Code predates the 2013 Constitution and any criminal provisions contained in the Code which violate the Constitution, particularly the fundamental rights provisions, are open to constitutional challenge.
There have been a number of constitutional challenges but these were brought under the previous constitution.
In S v Tsvangirai 2001 (2) ZLR 426 (S) the court struck down as unconstitutional aspect of the offence of committing an act of terrrorism or sabotage in contravention of s 51 of the Law and Order (Maintenance) Act and the common law offence of public violence.
In Chavhunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S) the court found to be unconstitutional section 50(2)(a) of Law and Order (Maintenance) Act which made it an offence This offence forbade to make statements “likely” to cause fear, alarm and despondency.
In Chimakure, Kahiya & ZimInd Publishers (Pvt) Ltd 2013 (2) ZLR 466 (S) the court decided that certain of the provisions in section 31 of the Code were unconstitutional in terms of the previous constitution. (This section criminalises the making of certain statements which are prejudicial to the State.)
In Madanhire & Anor v The Attorney-General CCZ-2-15 the court decided that the offence in the Code criminalizing criminal defamation (section 96) was unconstitutional. As a result of this decision, the Code provision on criminal defamation has now been repealed.