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Fidelis Munyoro Chief Court Reporter
Fourteen condemned prisoners who complained of overstaying on death row, have lost their bid to nullify the death sentences imposed on them after the Constitutional Court threw out their application. The inmates, who have spent between four and 18 years awaiting their execution, approached the Constitutional Court challenging their pending execution. They argued that the length of their stay on the death row was an affront to their human dignity, freedom from torture, inhuman or degrading treatment or punishment in breach of sections 51 and 53 of the Constitution.
In a judgment delivered yesterday, the court dismissed the application saying the 14 should first exhaust the statutory legal remedies that are still available to them before coming to the highest court of last resort to constitutional matters.
The inmates could have sought a review of the administrative action or omission complained of under the Administrative Act.
They could also have appealed to the Supreme Court or sought Presidential pardon or commutation under section 48 (2) (e) of the Constitution before going to the apex court.
Justice Chinembiri Bhunu said it would be a travesty of procedural justice for the highest court of last resort to bypass both the Supreme Court and the President before they had exercised their constitutional mandates to decide on the applicable remedies according to the prescribed laws of the land.
“As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face of alternative remedies,” said Justice Chinembiri Bhunu.
“In that event, they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.”
The court admitted that there were delays in executing the court judgment, but that was no reason for it to prematurely intervene usurping the authority and function of the High Court, the Supreme Court, and the President.
“In the interim, the applicants may have recourse to the available alternative remedies,” he said.
“It is accordingly ordered that the application be and is hereby dismissed with no orders as to costs.”
The prisoners argued that they have overstayed on death row, a situation they say is a violation of their constitutional rights.
The 14 wanted the court to remove them from death row and commute their sentences to life imprisonment, but later abandoned the argument and sought to quash the death penalties.
Mr Tendai Biti acted for the prisoners, while Ms Olivia Zvedi from the Attorney- General’s office appeared for the Justice, Legal and Parliamentary Affairs Ministry, the Commissioner of Prisons and Correctional Services and the Attorney -General, who were listed as respondents.
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