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Judgment No. CCZ 3/2017
Const. Application No. CCZ 47/15
Const. Application No. CCZ 50/lp
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Justice and Peace in Zimbabwe vA-G & Ors 1993 (1) ZLR 243 (S) at 250G- A, where the
learned Chief Justice had this to say;
"Clearly it (Supreme Court) has jurisdiction in every type of situation which involves
an alleged breach or threatened breach of one of the provisions of the Declaration of
Rights and particularly, where there is no other judicial procedure available by which
the breach can be prevented. Compare Martin v Attorney-General & Anor 1993 (1)
ZLR 153 (S) (My emphasis)."
It is implicit in the learned Chief Justice's remarks that where there are other
judicial remedies to prevent the breach of fj.mdamental human rights, the Constitutional Court
may withhold its jurisdiction. What then distinguishes this case from the Catholic Commission
for Justice case is that, in that case, the Supreme Court only intervened at the last moment when
all available remedies had been exhausted and all hope lost. The applicants' appeals to the
Supreme Court and pleas for presidential pardon and clemency had failed and the date of
execution announced. Undoubtedly that case was ripe for the Supreme Court's intervention as
the highest cou1i of last resort and final arbiter before execution.
The same cannot be said in this case where the applicants still have some
alternative remedies at their disposal which I have already enumerated above. I now proceed
to consider the efficacy of those alternative remedies.
1. Review
The applicants' main bone of contention is that they have been subjected to
prolonged inhuman and degrading prison conditions while awaiting execution on death row.
The question of prison conditions is an issue which can be properly addressed by recourse to
the review powers of the High Court. If the prison conditions and conduct of prison authorities
are repugnant to law the High Court can provide a remedy on review in terms of the
Administrative Justice Act [Cap. 10:28]. The remedy will ensure that the applicants are
_ Ill.