Protection of law

39 | Equal protection of law

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)

Everyone is equal before the law and has the right to equal protection and benefit of the law.

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18 | Provisions to secure protection of law

Constitution of Zimbabwe (at 13th Feb, 2009)
  1. Subject to the provisions of this Constitution, every person is entitled to the protection of the law. [Subsection as amended by section 3 of Act 4 of 1993 – Amendment No. 12]

    (1a) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law. [Subsection inserted by section 4 of Act 1 of 2009 – Amendment No. 19]
  2.  If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
  3. Every person who is charged with a criminal offence—
    1. shall be presumed to be innocent until he is proved or has pleaded guilty;
    2. shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
    3. shall be given adequate time and facilities for the preparation of his defence;
    4. shall be permitted to defend himself in person or, save in proceedings before a local court, at his own expense by a legal representative of his own choice;
    5. shall be afforded facilities to examine in person or, save in proceedings before a local court, by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
    6. shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge; and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.
  4. When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
  5. No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
  6. No person who shows that he has been tried by a competent court for a criminal offence upon a good indictment, summons or charge upon which a valid judgment could be entered and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save—
    1. where a conviction and sentence of the High Court or of a court subordinate to the High Court are set aside on appeal or review on the ground that evidence was admitted which should not have been admitted or that evidence was rejected which should have been admitted or on the ground of any other irregularity or defect in the procedure; or [Paragraph as amended by section 9 of Act 15 of 1990 – Amendment No. 10]
    2. otherwise upon the order of the Supreme Court or the High Court in the course of appeal or review proceedings relating to the conviction or acquittal. [Paragraph as amended by section 3 of Act 4 of 1993 – Amendment No. 12]
  7. No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.
  8. No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
  9. Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations. [Subsection as amended by section 3 of Act 4 of 1993 – Amendment No. 12]
  10. Except in the case of a trial such as is referred to in subsection (14) or with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.
  11. Nothing in subsection (10) shall prevent—
    1. the court or other adjudicating authority from excluding from the proceedings, except the announcement of its decision, persons other than the parties thereto and their legal representatives to such extent as the court or other authority—
      1. may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of twenty-one years or the protection of the private lives of persons concerned in the proceedings; or
      2. may by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the State; or
    2. the court from excluding from proceedings preliminary to trial in respect of a criminal offence persons other than the accused person and his legal representative when so required by law, unless the accused person otherwise requests.
  12. Notwithstanding anything contained in subsection (4), (10) or (11), if in any proceedings before such court or other adjudicating authority as is referred to in subsection (2) or (9), including any proceedings by virtue of section 24, a certificate in writing is produced to the court or other authority signed by a Minister that it would not be in the public interest for any matter to be publicly disclosed, the court or other authority shall make arrangements for evidence relating to that matter to be heard in camera and shall take such other action as may be necessary or expedient to prevent the disclosure of that matter.
  13. Nothing contained in or done under the authority of any law shall be held to be in contravention of—
    1. subsection (2), (3)(e) or (9) to the extent that the law in question makes reasonable provision relating to the grounds of privilege or public policy on which evidence shall not be disclosed or witnesses are not competent or cannot be compelled to give evidence in any proceedings;
    2. subsection (3)(a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
    3. subsection (3)(e) to the extent that the law in question imposes reasonable conditions which must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;
    4. subsection (6) to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the appropriate disciplinary law, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law; or
    5. subsection (8) to the extent that the law in question authorises a court, where the person who is being tried refuses without just cause to answer any question put to him, to draw such inferences from that refusal as are proper and to treat that refusal, on the basis of such inferences, as evidence corroborating any other evidence given against that person.
  14. In the case of a person who is held in lawful detention, the provisions of subsection (2) shall not apply in relation to his trial for a criminal offence under the law regulating the discipline of persons held in such detention, save that the case of such person shall be afforded a fair hearing within a reasonable time, and the person or authority conducting the trial shall be regarded as a court for the purposes of this section.
  15. For the purposes of this section, a local court shall not be regarded as not being an independent and impartial court by reason of—
    1. the fact that a member of the court has an interest in the proceedings because of his position in the tribal society; or
    2. the traditional or customary tribal practices and procedures.
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49 | Protection of law: equality before the law

Kariba Draft Constitution

Everyone is equal before the law and has the right to equal protection and benefit of the law.

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50 | Protection of law: fairness in criminal cases

Kariba Draft Constitution
  1. Everyone accused of an offence has the right to a fair trial within a reasonable time before an independent and impartial court established by law.
  2. The right to a fair trial under subsection (1) includes the right–
    1. to be presumed innocent until the accused person has been proved guilty;
    2. to be informed promptly of the charge, in sufficient detail to enable the accused person to answer it;
    3. to be given adequate time to prepare a defence;
    4. to be present when being tried, unless the accused person's conduct makes it impracticable to continue the proceedings in his or her presence;
    5. to choose a legal practitioner and, at the accused person's own expense, to be represented by that legal practitioner;
    6. if the accused person is liable to be sentenced to death or to life imprisonment, to have a legal practitioner assigned by the State at State expense, and to be represented by that legal practitioner;
    7. to be informed of the rights conferred by paragraphs (e) and (f);
    8. to adduce and challenge evidence;
    9. to have the proceedings of the trial interpreted so that the accused person understands them;
    10. not to be compelled to give evidence;
    11. not to be convicted on account of an act or omission that was not an offence when it took place;
    12. not to be tried in respect of an act or omission for which the accused person has been pardoned or either acquitted or convicted on the merits in previous criminal proceedings, unless–
      1. a court has set aside those earlier proceedings on the grounds of a procedural irregularity or defect; or
      2. for some other reason, a court has ordered a retrial;
    13. 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.
  3. Where this section requires information to be given to a person–
    1. the information must be given in a language the person understands; and
    2. if the person cannot read or write, any document embodying the information must be explained in such a way that he or she understands it.
  4. In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or otherwise be detrimental to the administration of justice or the public interest.
  5. Criminal proceedings, including the announcement of the court's decision, must be held in public.
  6. Anyone who has been tried for an offence has the right, on payment of a reasonable fee, to be given a copy of the record of the proceedings within a reasonable time after judgment is delivered in the trial.
  7. Anyone who has been tried and convicted of an offence by a court has the right, subject to reasonable restrictions that may be prescribed by law, to–
    1. have the case reviewed by a higher court; or
    2. appeal to a higher court against the conviction and any sentence that may have been imposed.
  8. A law may impose on a person charged with an offence the burden of proving particular facts which are or ought to be within the person's knowledge or readily ascertainable by the person.
  9. A law may allow a court to draw whatever inferences are proper from an accused person's refusal to answer a question, and to treat the refusal, on the basis of those inferences, as evidence corroborating any other evidence given against the accused person.
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51 | Protection of law: fairness in civil proceedings

Kariba Draft Constitution
  1. Everyone is entitled to have the existence or extent of their civil rights or obligations decided, within a reasonable time and after a fair hearing, by an independent and impartial court or tribunal established by law.
  2. The proceedings in which a court or tribunal decides the existence or extent of a person's civil rights and obligations, including the announcement of its decision, must be held in public.
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40 | Access to courts

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)

Everyone has the right of access to the courts for the resolution of any dispute that can be resolved by the application of the law.

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38 | Access to courts

National Constitutional Assembly (NCA) Draft Constitution (2001)

Every person has the right of access to the courts for the resolution of any dispute that can be resolved by the application of law.

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41 | Right to a fair hearing

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)
  1.  Everyone accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court established by law.
  2. In the determination of civil rights and obligations, everyone is entitled to a fair, speedy and public hearing within a reasonable time before an independent and impartial court or tribunal established by law.
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45 | Right of fair hearing

National Constitutional Assembly (NCA) Draft Constitution (2001)

In the determination of civil rights and obligations or any criminal charge, a person is entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

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