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REPORTABLE (56)

Judgment No. SC 46/03

Civil Application No. 68/03

BENJAMIN PARADZA v

(1) THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

(2) THE ATTORNEY-GENERAL (3) MISHROD GUVAMOMBE (4) THE COMMISSIONER OF POLICE N.O.

(5) CHIEF SUPERINTENDENT NYATHI

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA, MALABA JA, GWAUNZA JA & UCHENA AJA

HARARE, SEPTEMBER 16, 2003

J J Gauntlett SC, with him J Wood and J Samkange, for the applicant

C Muchenga, with him L Matanda-Moyo, for the respondents

SANDURA  JA: This application was brought in terms of s 24(1) of the Constitution of Zimbabwe (“the Constitution”) seeking an order declaring that the arrest, detention and remand of the applicant were unconstitutional, setting aside the decision to place him on remand, and directing that the sum of $20 000.00 deposited by him as bail be refunded and that his passport be restored to him. In addition, the applicant prayed for costs on the legal practitioner and client scale.

During his submissions counsel for the respondents conceded, quite correctly, that the applicant’s arrest, detention and remand were unlawful and, therefore, unconstitutional. Accordingly, we granted the order sought by the applicant, with costs on the ordinary scale, and indicated that our reasons would be handed down in due course. I now set them out.

The factual background is as follows. The applicant is a judge of the High Court stationed in Harare. On 17 February 2003, he was arrested by the fifth respondent (“Nyathi”). The allegation against him was that he had, on 15 and 16 January 2003, attempted to defeat or obstruct the course of justice in that he had tried to influence two other judges of the High Court stationed in Bulawayo to release the passport of his business partner, who was undergoing trial on a charge of murder, to enable him to undertake a business trip overseas. Alternatively, it was alleged that the applicant had contravened s 360(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], the allegation being that he had incited the two judges in Bulawayo to contravene s 4(a) of the Prevention of Corruption Act [Chapter 9:16].

According to the applicant, the arrest took place in his chambers, but that is disputed by Nyathi whose version is that, after arriving at the applicant’s chambers, he explained the purpose of his visit and the applicant agreed to accompany him to the offices of the Criminal Investigation Department where the arrest was effected. However, this dispute of fact is not relevant in determining the issues which arise in this application.

After the applicant had been questioned, a warned and cautioned statement was recorded from him and he was later detained at Borrowdale Police Station, less than a kilometre away from his home, in a police cell which he shared with other inmates.

On the following day, he was taken to the magistrate's court where he was remanded out of custody, having been granted bail. The Request for Remand Form 242, which was completed by Nyathi, indicated that bail was not opposed. In addition, it indicated that the applicant was not likely to abscond, that he was not likely to interfere with the evidence or witnesses for the prosecution, and that he was not likely to commit other offences.

Subsequently, the applicant filed this application seeking the order already referred to at the beginning of this judgment.

Mr Gauntlett, who appeared for the applicant, advanced two main arguments. The first was that the applicant’s arrest and detention were unconstitutional because the decision to arrest and detain the applicant was so outrageous in its defiance of logic that no sensible person who had applied his mind to the issue could have arrived at it; and the second was that the applicant’s arrest, detention and remand were unconstitutional because they violated the applicant’s rights set out in ss 79B and 87 of the Constitution. I shall deal with these arguments in turn.

THE CONSTITUTIONALITY OF THE ARREST AND DETENTION IN THE LIGHT OF SECTIONS 13 AND 18 OF THE CONSTITUTION

The deprivation of personal liberty by an arrest or detention is prima facie unlawful. Consequently, the person arresting and detaining another must establish that his actions are authorised by law.

Thus, in Minister of Law and Order & Ors v Hurley & Anor 1986 (3) SA 568 (A), RABIE CJ said the following at 589 E-F:

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”

In our jurisdiction, every person is accorded the protection of the law by s 18(1) of the Constitution, which reads as follows:

“Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”

However, the protection of the right to personal liberty is regulated by s 13 of the Constitution. Subsections (1) and (2) of that section, in relevant part, read as follows:

“(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorised by law –

(a) – (d) …

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;”.

Thus, the deprivation of personal liberty must be authorised by law.

On the facts of the present application, the relevant law is s 25(1)(b) of the Criminal Procedure and Evidence Act which, in relevant part, reads as follows:

“(1) Any peace officer and any other officer empowered by law to execute criminal warrants is hereby authorised … to arrest without warrant –

(a) …;

(b) any person whom he has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule;”.

The offences mentioned in the First Schedule include the common law offence of attempting to defeat or obstruct the course of justice.

It is clear from s 25(1)(b) of the Criminal Procedure and Evidence Act that the officer effecting the arrest must have reasonable grounds for suspecting that the person he intends to arrest has committed the offence in question. As GUBBAY  CJ said in Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) at 96 C-D:

“… he must satisfy himself that reasonable grounds for suspicion of guilt do exist. That requirement is very limited. He is not called upon before acting to have anything like a prima facie case for conviction. Certainty as to the truth is not involved, for otherwise it ceases to be suspicion and becomes fact. Suspicion, by definition, is a state of conjecture or surmise whereof proof is lacking …”.

In the present matter I shall assume, but without deciding, that Nyathi had reasonable grounds for suspecting that the applicant had committed the offence or offences in question. The question which then arises is whether he was required by law to arrest and detain the applicant. In other words, did he have the discretion whether to arrest him or not?

That question was answered by LORD DIPLOCK in Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL) at 1057 e-g as follows:

“… since the wording of the subsection under which he acted is ‘may arrest without warrant’, this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute on a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except on those principles laid down by LORD GREENE MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under s 2(4) of the 1967 Act, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.”

Similarly, in Muzonda’s case supra at 98 B-D, GUBBAY  CJ commented on the provisions of s 29(1)(b), now s 25(1)(b), of the Criminal Procedure and Evidence Act as follows:

“Section 29(1) of the present Act employs the phrase ‘is hereby authorised … to arrest’. I am satisfied that, read with para (b), it is to be construed as imparting a discretion upon the peace officer in the exercise of his power of arrest. This conforms with common sense. … In short, in enacting s 29(1)(b), the law-maker did not intend that the power given a peace officer to arrest is always, or even ordinarily, to be exercised.”

I entirely agree, and am satisfied that Nyathi had the discretion whether to arrest the applicant or not.

In the circumstances, the decision to arrest the applicant can only be held to be unreasonable and subject to interference by this Court if, as LORD DIPLOCK stated in Council of Civil Service Unions & Ors v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951 a-b, it was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

The factors to be considered in determining whether an arrest was unreasonable in the Wednesbury sense were set out by GUBBAY  CJ in Muzonda’s case supra at 99E as follows:

“In making the determination of whether the decision to arrest the plaintiff is open to challenge, several important factors require to be considered. They are: (i) the possibility of escape; (ii) the prevention of further crime; and (iii) the obstruction of police enquiries.”

In the present case, bearing in mind that there was no likelihood that the applicant would abscond, interfere with State witnesses, or commit further offences, there can be no doubt that the decision to arrest, detain and remand the applicant was unreasonable in the Wednesbury sense. Consequently, as submitted by Mr Gauntlett, the applicant was not deprived of his personal liberty in a manner authorised by law within the contemplation of s 13(1) of the Constitution.

On that basis alone, the applicant was entitled to the order sought. Nevertheless, I shall deal with the second argument advanced by Mr Gauntlett because it raises issues of constitutional importance.

THE UNCONSTITUTIONALITY OF CRIMINAL PROCEEDINGS IN VIEW OF SECTIONS 79B AND 87 OF THE CONSTITUTION

The second argument advanced on behalf of the applicant was that his arrest, detention and remand violated his constitutional rights as set out in ss 79B and 87 of the Constitution.

Section 79B reads as follows:

“In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority, except to the extent that a written law may place him under the direction or control of another member of the judiciary.”

And s 87, in relevant part, reads as follows:

“(1) A judge of the Supreme Court or the High Court may be removed from office only for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.

(2) If the President considers that the question of the removal from office of the Chief Justice ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(3) If, in the case of a judge of the Supreme Court or the High Court other than the Chief Justice, the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(4) A tribunal appointed under subsection (2) or (3) shall consist of not less than three members selected by the President from the following –

(a) persons who have held office as a judge of the Supreme Court or the High Court;

(b) persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English, and English is an official language;

(c) legal practitioners of not less than seven years’ standing …;

one of whom shall be designated by the President as chairman.

(4a) - (5) …;

(6) A tribunal appointed under subsection (2) or (3) shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether or not he should refer the question of the removal of the judge from office to the Judicial Service Commission, and the President shall act in accordance with such recommendation.

(7) …

(8) If the question of removing a judge of the Supreme Court or the High Court from office has been referred to a tribunal under subsection (2) or (3), the judge shall be suspended from performing the functions of his office until the President, on the recommendation of the tribunal or the Judicial Service Commission, revokes the suspension or the judge is removed from office in accordance with subsection (9).

(9) If the question of the removal of a judge has been referred to the Judicial Service Commission in accordance with subsection (6) and the Commission advises that the judge be removed from office, the President shall, by order under the public seal, remove the judge from office.”

Before interpreting the provisions of the two sections of the Constitution set out above, and determining whether the applicant’s rights were violated, it is pertinent to note that the Constitution is the supreme law of the land and that it creates a fundamental framework within which the respective ambits of the legislative, executive and judicial arms of the State are defined. It is not exhaustive in its own terms and, consequently, a generous and purposive interpretation of the Constitution has to be adopted in order to give effect to its underlying values.

Thus, in Government of the Republic of Namibia & Anor v Cultura 2000 & Anor, 1994 (1) SA 407 (Nm SC) at 418 F-G, MAHOMED CJ said:

“A Constitution is an organic instrument. Although it is enacted in the form of a statute, it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid the ‘austerity of tabulated legalism’ and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government.”

Similarly, in Rattigan & Ors v Chief Immigration Officer & Anor 1994 (2) ZLR 54 (S) at 57 F-H, 1995 (2) SA 182 (ZSC) at 185 E-F, GUBBAY  CJ said:

“This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and, where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly or strictly construed.”

I am in complete agreement with MAHOMED CJ and GUBBAY  CJ on the proper approach to constitutional interpretation.

I now wish to consider s 79B. This section provides that, in the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority. The only exception to that provision, which is stated in the section, is where a written law places a member of the judiciary under the direction or control of another member of the judiciary. The section is clear and unambiguous.

With regard to this section, the argument advanced by counsel for the applicant was that by arresting the applicant and detaining him, Nyathi placed the applicant under the direction or control of persons who are not members of the judiciary, which is not permitted by s 79B. He submitted as follows:

“There could hardly … be a more direct, encompassing form of ‘direction or control’ than one which puts a hand on the judge (in arresting him), requires him to attend court as an accused, and then locks him or her in a cell.”

I respectfully agree with counsel’s submission. In terms of this section a judge, whilst serving as such, cannot be placed under the factual direction or control of anyone other than that of another member of the judiciary in terms of a written law.

This provision was intended not only to entrench the independence of the judiciary, but also to ensure that the judiciary, which plays a pivotal role in the protection and enforcement of the Constitution, continues to function effectively.

In the circumstances, it is clear beyond doubt that the arrest, detention and remand of the applicant constituted a contravention of s 79B of the Constitution.

I now come to s 87, which deals with the removal of judges from office. Its provisions have already been set out. Although the Constitution does not say what constitutes misbehaviour, I have no doubt in my mind that it includes criminal misconduct. If that were not the case, there would be an obvious absurdity because it would mean that a judge could be removed from office for ethical transgressions but could not be removed from office if he committed a criminal offence, no matter how serious the offence may be. That could hardly have been the intention of the framers of the Constitution.

The applicant’s contention with regard to s 87 was that where a judge is alleged to have committed a serious criminal offence, as opposed to a minor one, such as a traffic offence, he has a right to be dealt with in terms of s 87 first before any criminal proceedings are instituted against him. In other words, the contention was that the Chief Justice would first decide whether the circumstances are such that the judge’s removal from office ought to be investigated. If he held that view, he would deal with the judge concerned in terms of s 87. Otherwise, he would take no action against the judge and, thereafter, criminal proceedings might ensue.

On the other hand, the respondents contended that the institution of criminal proceedings against the judge concerned does not have to wait until the judge is dealt with in terms of s 87 or until it is decided not to deal with him in terms of that section. In their view, the judge may be prosecuted before the Chief Justice has decided to proceed against him in terms of s 87 or at any time after the Chief Justice has decided to proceed against him in terms of that section. I respectfully disagree.

Because the judiciary plays a pivotal role in the interpretation, protection and enforcement of the supreme law of the land, i.e. the Constitution, judges occupy a special position in our society which is recognised by the Constitution. An examination of the Constitution reveals a scheme in terms of which the independence of the judiciary is guaranteed. It is as follows –

1. Section 79B provides that in the exercise of his judicial functions a judge shall not be subject to the direction or control of any person who is not a judge. This section entrenches the independence of the judiciary which is vital for the proper functioning of a constitutional democracy.

2. Section 86 entrenches in the Constitution the continued discharge by a judge of his or her functions until he or she resigns or retires.

3. Section 87(1) provides that “a judge … may be removed from office only for inability to discharge the functions of his office … or for misbehaviour and shall not be so removed except in accordance with the provisions of this section” (emphasis added). This section does not permit any removal, temporary or otherwise, unless it is in accordance with the provisions of the section.

4. Section 87(3) provides that if the Chief Justice advises the President that the question of a judge’s removal from office ought to be investigated, the President is obliged to appoint a tribunal to inquire into the matter. It is significant that the President does not have any discretion in the matter.

5. Section 87(4) provides that the tribunal appointed by the President shall consist of not less than three members selected by him from the following –

(a) former judges of the Supreme Court or the High Court;

(b) judges or former judges from other countries where the common law is Roman-Dutch or English, and English is an official language;

(c) legal practitioners of not less than seven years’ standing (i.e. those qualified for appointment as judges).

6. Section 87(6) provides that the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether or not he should refer the question of the judge’s removal from office to the Judicial Service Commission. It is significant that the President has no discretion, but is obliged to act in accordance with the tribunal’s recommendation.

7. Section 87(8) provides that if the question of removing a judge from office has been referred to the tribunal the judge shall be suspended from performing his functions until the President, acting on the recommendation of the tribunal or the Judicial Service Commission, revokes the suspension. It is pertinent to note that this is the only temporary interference with the performance of the judge’s functions permitted by the Constitution.

8. Finally, s 87(9) provides that if the question of a judge’s removal from office has been referred to the Judicial Service Commission and the Commission advises that the judge be removed from office, the President shall remove him from office. Once again, the President does not have a discretion in the matter, but acts in accordance with the advice given by the Commission, which is chaired by the Chief Justice.

Thus, the scheme provided by the framers of the Constitution in respect of judges is clear. A judge remains a judge until he or she resigns or retires in accordance with the provisions of s 86, or is removed from office in accordance with the provisions of s 87. Only judges may direct or control other judges, except where judges are directed or controlled as ordinary citizens, for example, where a police officer directs or controls traffic.

In addition, the tribunal appointed by the President, on the advice of the Chief Justice, to investigate the question of a judge’s removal from office, consists of judges, former judges and lawyers qualified for appointment as judges. In other words, only judges may inquire into the misconduct of other judges and report thereon. It is significant that their recommendation is binding on the President.

It is pertinent to note that the framers of the Constitution did not provide a similar scheme in respect of members of Parliament. The position of a member of Parliament is set out in ss 41, 42 and 43 of the Constitution.

Section 41(1), which deals with the tenure of seats of members of Parliament, in relevant part, reads as follows:

“Subject to the provisions of this section, the seat of a member of Parliament shall become vacant only –

(a) –(k) …;

(l) in the circumstances set out in section 42;

(m) if he is required, by virtue of the provisions of s 43, to vacate his seat;

(n) – (o) …;

(p) if he has been convicted of an offence under the Electoral Act and has been declared by the High Court … to be disqualified for registration as a voter or from voting at any election;

(q) …;”.

Section 42, which sets out what happens to the seat of a member of Parliament sentenced to death or to imprisonment, reads as follows, in relevant part:

“Subject to the provisions of this section, in the event of a member of Parliament being convicted –

(a) within Zimbabwe of a criminal offence; or

(b) outside Zimbabwe of an offence, … which if committed within Zimbabwe would have been a criminal offence;

and being sentenced by a court to death or imprisonment … for a term of six months or more, such member shall cease forthwith to exercise his functions and to be entitled to any remuneration as a member and his seat shall become vacant at the expiration of thirty days from the date of such sentence.”

And s 43(1), which deals with the expulsion or suspension of members convicted of certain offences, reads as follows:

“Subject to the provisions of this section, if –

(a) a member of Parliament is convicted of an offence referred to in section 42(1) and is sentenced to imprisonment for a lesser period than that specified in that subsection or to a fine or other punishment not specified in that subsection; and

(b) Parliament, after taking into account the nature of the offence and the sentence imposed, resolves, by the affirmative votes of not less than two-thirds of its total membership, that the member is unfit to continue as a member or that the member should be suspended from the service of Parliament for such period, not exceeding six months, as Parliament may specify;

the member shall forthwith vacate his seat or, as the case may be, be suspended from the service of Parliament for the period so specified.”

It is clear from the above provisions that where it is alleged that a member of Parliament has committed a criminal offence, there is no investigation of the allegations by a tribunal similar to the one which investigates the question of removing a judge from office. As far as the facts are concerned, Parliament relies upon the findings of the court which convicted the member of Parliament. In other words, apart from the Attorney-General instituting criminal proceedings against the member of Parliament and conducting a trial, the Constitution does not provide any other way in which Parliament can investigate the allegations, in order to determine whether or not the member should be expelled or suspended from Parliament. It follows, therefore, that where it is alleged that a member of Parliament has committed a criminal offence, there is nothing in the Constitution which would delay the institution of criminal proceedings against him.

However, judges ought to be treated differently for the reasons already given. In my view, it could not have been the intention of the framers of the Constitution that a peace officer could arrest a judge and trigger the prosecution, indictment and trial of the judge before the Chief Justice has had the opportunity to consider whether to advise the President that the question of the judge’s removal from office should be investigated. They must have intended that the allegations would first be investigated and the facts ascertained by a high-powered judicial tribunal consisting of judges, former judges and lawyers qualified for appointment as judges before the police were involved in the investigations.

The conclusion I have reached is supported by the CHIEF JUSTICES of Botswana, Malawi, Mauritius, Namibia, South Africa, Swaziland, Tanzania, Uganda and Zambia who, on 5 March 2003, issued a joint statement on the arrest and detention of the applicant. The relevant part of the statement reads as follows:

“Like everyone else judges are not above the law. Their position as judges in a democratic state, however, requires that they must be and must be seen to be independent and not subject to direct or indirect pressure from the executive. For this reason the investigation of criminal charges against them needs to be conducted with sensitivity to their status, their role in society and their relationship with the executive. Procedures should be followed to avoid as far as possible any suggestion that a particular judge is being victimised by the executive for his or her views or decisions. For this reason special procedures are usually followed in democratic societies where allegations of serious criminal conduct are made against a judge. Such procedures ordinarily involve the holding of an independent enquiry into whether or not the judge should be impeached. If the allegations are then found to have substance, and the judge is impeached, a criminal prosecution may follow. The Constitution of Zimbabwe makes provision for such a procedure to be followed in respect of the impeachment of judges. It is regrettable that this procedure, rather than arrest, detention and prosecution, has not been followed in respect of the allegations against Mr Justice Paradza.”

I now turn to a hypothetical question which was raised during the hearing of this application. The question was whether a peace officer should not arrest a judge where he has good grounds for believing that the judge, who has committed a serious offence, is about to leave the country in order to avoid trial. Whilst I have my views on this issue, I shall not answer the question because it is not the practice of this Court to answer hypothetical questions.

As DUMBUTSHENA  AJA said in Kauesa v Minister of Home Affairs & Ors 1996 (4) SA 965 (Nm SC) at 974 D-E:

“… we consider it appropriate to refer to what was said by BHAGWATI J (as he then was) in M M Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:

‘It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.’

We respectfully endorse those words, particularly when applied to constitutional issues, and commend such a salutary practice to the courts of this country. Constitutional law in particular should be developed cautiously, judiciously and pragmatically if it is to withstand the test of time.”

I now wish to comment on the judgment prepared by MALABA JA. He has come to the conclusion that when there is an allegation that a judge has committed a serious criminal offence, on the basis of which the judge could be removed from office in terms of s 87 of the Constitution, the judge does not have the right to be dealt with in terms of that section before criminal proceedings are instituted against him.

In reaching that conclusion, he relied upon the provisions of subss (4)(a) and (7) of s 76 of the Constitution, which deal with the powers of the Attorney-General, and the obiter dicta expressed by SHETTY J in K Veeraswami v Union of India and Ors [1991] 3 SCR 189 at 250B-251D.

The relevant provisions of s 76 of the Constitution read as follows:

“(4) The Attorney-General shall have power in any case in which he considers it desirable so to do –

(a) to institute and undertake criminal proceedings before any court …;

(4a) – (6) …;

(7) In the exercise of his powers under subs  (4) or (4a), the Attorney-General shall not be subject to the direction or control of any person or authority.”

The interpretation given to the above provisions by MALABA JA was that this Court would be acting in violation of s 76(7) of the Constitution if it declared that the Attorney-General could not institute criminal proceedings against the applicant before the applicant was dealt with in terms of s 87 of the Constitution. I respectfully disagree.

It must be remembered that the powers of the Attorney-General are to be exercised within the framework of the Constitution. That means that in exercising his powers the Attorney-General is obliged to comply with all the provisions of the Constitution. As already stated, a generous and purposive interpretation of the relevant provisions of the Constitution leads to the inescapable conclusion that the applicant should have been dealt with in terms of s 87 of the Constitution before criminal proceedings were instituted against him.

Accordingly, the Attorney-General should have acted in accordance with the provisions of the Constitution and deferred the institution of criminal proceedings against the applicant until after the applicant had been dealt with in terms of s 87 of the Constitution. As he did not do so, it was within the powers of this Court to declare his action unconstitutional.

Having said that, I wish to set out the relevant constitutional and statutory provisions which were considered in the Veeraswami case supra, and the issues which the Supreme Court of India had to determine in that case. I do so in order to facilitate a better appreciation of the fact that what SHETTY J said was obiter.

Clauses (4) and (5) of Article 124 of the Constitution of India, which govern the removal from office of a judge of the Supreme Court or of the High Court, read as follows:

“(4) A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge under clause (4).”

In terms of Article 218, the provisions of clauses (4) and (5) of Article 124 also apply to judges of the High Court.

Mr Justice Veeraswami (“Veeraswami”) was charged with contravening s 5(1)(e) of the Prevention of Corruption Act, 1947, which provided that a public servant committed the offence of criminal misconduct –

“… if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.”

Section 6(1)(c) of the same Act provided that a public servant could not be prosecuted for the offence specified in s 5(1)(e) of the Act unless the prosecution was sanctioned by the authority competent to remove the public servant from his office.

Veeraswami’s appeal was heard by five judges of the Supreme Court of India. These were RAY, SHETTY, SHARMA, VENKATACHALIAH and VERMA, JJ.

In determining the appeal, the Supreme Court of India had to answer the following questions:

1. Is a judge of the High Court or of the Supreme Court a public servant within the meaning of s 2 of the Prevention of Corruption Act, 1947?

2. Can a judge of the High Court, including the Chief Justice, or a judge of the Supreme Court be prosecuted for an offence under the Prevention of Corruption Act, 1947?

3. Who is the competent authority to remove a judge either of the High Court or of the Supreme Court from his office, whose sanction for the prosecution of the judge is required in terms of s 6(1)(c) of the Prevention of Corruption Act, 1947?

It was in the course of answering the second question that SHETTY J expressed the obiter dicta quoted in extenso by MALABA JA in support of the conclusion that the institution of criminal proceedings does not have to wait until after the judge concerned has been dealt with in terms of s 87 of the Constitution. I say that the views expressed by SHETTY J in this regard were obiter dicta because they were not necessary for the determination of the three issues before the court which I have set out above.

The specific question which SHETTY J was considering when he expressed the obiter dicta was whether a judge could at all be prosecuted for an offence under the Prevention of Corruption Act, 1947, and not whether such prosecution could precede the judge’s removal from office. By a majority of four to one, the court held that a judge could be prosecuted for such an offence, but VERMA J dissented and was of the view that although a judge was a public servant within the meaning of s 2 of the Prevention of Corruption Act, 1947, he was outside the purview of the Act and could not be prosecuted for an offence under the Act.

However, it is pertinent to note that although the majority judgment was prepared by SHETTY J, RAY J prepared his own judgment in which he expressed his concurrence with the conclusions reached by SHETTY J in respect of the three issues which the court had to determine, but did not comment on the obiter dicta (see pp 216B-228E).

VENKATACHALIAH J did not prepare a separate judgment and there is nothing in the judgment prepared by SHETTY J (see pp 228E-269E) which indicates that VENKATACHALIAH J agreed with the views expressed by SHETTY J, although the headnote gives the impression that he agreed with those views.

VERMA J, who prepared a long dissenting judgment (see pp 269E-306F) did not comment on the obiter dicta expressed by SHETTY J. That was obviously due to the fact that he held the view that a judge could not at any time be prosecuted for an offence under the Prevention of Corruption Act, 1947.

However, SHARMA J, who concurred with the majority judgment only in respect of the first two of the three questions set out above, prepared a separate judgment in which he commented on the obiter dicta expressed by SHETTY J. He was of the opinion that the removal of the judge from office and the granting of the sanction to prosecute the judge should be combined in order to avoid a situation where a convicted judge continued to be a judge entitled to exercise his powers. At 268E-269A the learned judge said the following:

“It is true that the grant of sanction will be delayed until the accusation is examined according to the law enacted under Clause (5) of Article 124, but once that stage is over and a finding is recorded against the judge, there should not be any hitch in combining the two matters - that is the removal and the grant of sanction - which are obviously intertwined … . The two matters - the prosecution and removal - should not, therefore, be treated to be separate and unconnected with each other. Otherwise, there will be scope left for the judge concerned to claim that although he may be facing prosecution or may have been even convicted after trial, he still continues to be a judge entitled to exercise his powers, as he has not been removed from his office. It was stated during the course of the hearing that actually such a situation has arisen in another country where a judge although punished with imprisonment was insisting that he still continued in his office. I do not think that such a thing is permissible in this country … . Before closing this chapter I would again repeat that this issue is not arising in the present case and will have to be considered and finally decided only when it directly arises.” (emphasis added)

In our jurisdiction, the absurdity referred to by SHARMA J would inevitably arise if a judge were to be prosecuted before he was dealt with in terms of s 87 of the Constitution. That is so because unless the judge is suspended from performing the functions of his office in terms of s 87(8) of the Constitution, which can only be done when the question of his removal from office has been referred to a tribunal, he is, in terms of the Constitution, entitled to perform his judicial functions.

The suggestion by SHETTY J that a judge who is facing a criminal prosecution should voluntarily withdraw from judicial work and await the outcome of the criminal prosecution would not apply in our jurisdiction because there is a specific provision in the Constitution in terms of which such a judge may be suspended from performing the functions of his office. There is no such provision in the Constitution of India. In any event, the suggestion cannot be enforced because the judge concerned cannot legally be compelled to abstain from performing the functions of his office.

In interpreting the relevant constitutional provisions it is important to remember that the provisions should be interpreted in a way which does not lead to any absurdity. Applying that principle, it is my view that it was never the intention of the framers of the Constitution that a judge could be prosecuted, convicted and sentenced before he was either suspended from performing the functions of his office or removed from office.

A contrary interpretation of the relevant constitutional provisions would inevitably lead to the absurdity highlighted by SHARMA J.

The other case relied upon by MALABA JA, i.e. Chandler v Judicial Council [1970] USSC 160; 398 US 74, 26 L Ed 2d 100 (1970), did not at all deal with the issue as to whether a judge could be prosecuted for a criminal offence before he was impeached. What MR JUSTICE DOUGLAS and MR JUSTICE BLACK said in that case simply means that judges, like other people, are not above the law. The case is, therefore, of no assistance in the present matter.

In any event, the Constitution of the United States of America does not have any provisions similar to the elaborate provisions of s 87 of the Constitution of Zimbabwe which specifically deal with the removal of a judge from office. Section 1 of Article III of the Constitution of the United States, which deals with the judiciary, reads as follows:

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office.”

However, s 3 of Article 1, which deals with impeachments, provides as follows:

“The Senate shall have the sole power to try all impeachments … .

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” (emphasis added)

That, in my view, is a strong indication that the impeachment of a judge precedes the institution of criminal proceedings against him.

Finally, I wish to deal with the question of costs. As already stated, the applicant prayed for costs on the legal practitioner and client scale. In view of the fact that the applicant’s arrest and detention constituted a very serious violation of his constitutional rights, I was of the opinion that the applicant was entitled to costs on the higher scale. However, my colleagues felt otherwise.

In the circumstances, after hearing both counsel, we granted the order sought, with costs on the ordinary scale.

MALABA JA: I have read the judgment prepared by my brother SANDURA  JA. A concession was made on behalf of the respondents on the fact that the arrest, detention and remand of the applicant violated the provisions of ss 13(1) and 18(1) of the Constitution of Zimbabwe (“the Constitution”). The concession, in my view, was dispositive of the real dispute between the parties and provided sufficient ground for the order made by the Court.

It was not necessary to go into the question whether the arrest, detention and remand, that is, the institution of criminal proceedings against the applicant, were also in contravention of ss 79B and 87 of the Constitution. As SANDURA  JA, who was the presiding judge, considered the question to be of great constitutional importance and expressed views on it with which I respectfully disagree, I have found it necessary to express my own views on the matter.

The contention advanced by the applicant was that under the constitutional scheme criminal proceedings cannot be instituted against a sitting judge of the Supreme Court or High Court before the procedure provided for in s 87 of the Constitution for his removal from office has been gone into and completed because to do so would violate the principle of judicial independence contained in s 79B. He argued that the initiation of criminal proceedings against him before the procedure for his removal from office had been gone into and completed should be declared unconstitutional. He did not claim that a judge of the Supreme Court or High Court enjoyed immunity from prosecution for criminal offences.

It was suggested in the heads of argument that the applicant could not be charged with an offence under the Prevention of Corruption Act [Chapter 9:16] (“the Act”) because as a judge he is not a “public officer”. Section 4(a), with which the applicant was charged, makes it a criminal offence for a “public officer”, in the course of his employment as such, to do anything that is contrary to or inconsistent with his duty as a “public officer” for the purpose of showing favour or disfavour to any person.

A “public officer” is defined in s 2 of the Act to mean “a person holding or acting in a paid office in the service of the State, a statutory body or a local authority”. This definition is wide enough to include a judge. He or she is a constitutional functionary appointed into a public office so that the judicial authority and function of the State are discharged. The salary and allowances paid to a judge for his service to the State are paid out of a Consolidated Revenue Fund. In Rex v Whitaker [1914] 3 KB 1283 at p 1296 LAWRENCE J said:

“A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges he is a public officer.”

It was held in Whitaker’s case supra that a judicial officer was a ”public officer”. So a judge of the Supreme Court or High Court would be criminally liable should he or she commit any of the acts proscribed under the Act.

I now turn to consider the argument for the submission that the institution of criminal proceedings against the applicant as a sitting judge before the procedure for his removal from office had been gone into and completed violated his constitutional right to judicial independence.

I start by setting out the provisions of the Constitution the interpretation of which is relevant to the determination of the question in issue.

Section 76(1) creates the office of the Attorney-General. Section 76(4)(a) provides that the Attorney-General shall have power in any case in which he considers it desirable so to do to institute and undertake criminal proceedings before any court, not being a court established by a disciplinary law (the underlining is mine). Section 76(7) provides that:

“In the exercise of his powers under subsection (4) or (4(a)) the Attorney-General shall not be subject to the direction or control of any person or authority.”

Section 79(1) of the Constitution vests judicial authority in Zimbabwe in the Supreme Court and the High Court and such other subordinate courts as may be established by or under an Act of Parliament. Section 79B secures the independence of a judge in the exercise of the functions of his office. It provides that:

“In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority.”

Judicial independence is further protected by the provisions of s 87(1), which declare that:

“A judge of the Supreme Court or the High Court may be removed from office only for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.”

The mandatory procedure to be followed and things to be done when the removal of a judge from office for misbehaviour needs to be investigated are set out in s 87, subss (2) to (9). In the case of a judge of the Supreme Court or High Court the procedure for his or her removal from office for misbehaviour only commences when the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated. On receipt of the advice from the Chief Justice, the President is obliged to appoint a Tribunal to inquire into the question of the removal of the judge concerned from office.

The correctness of the contention advanced by the applicant depends on the interpretation adopted of ss 79B and 87 and the view taken of the nature and character of judicial independence. The first part of the argument made in support of the contention was that the concept of “misbehaviour” in s 87 of the Constitution included serious criminal offences such as were charged against the applicant and the only machinery with legal sanction for dealing with such criminal conduct was the procedure for the removal of a judge from office. Although Mr Muchengwa for the respondents argued that “misbehaviour” in s 87 did not include criminal misconduct, I agree with Mr Gauntlett that misbehaviour includes serious criminal offences.

In K Veeraswami v Union of India (1991) 3 SCR 189 a complaint against the appellant, a former Chief Justice of Madras High Court was made to the Delhi Special Police Establishment (CBI). On 24 February 1976, whilst the appellant was still Chief Justice of the Madras High Court, the police registered a case of corruption against him with the courts at New Delhi. It was alleged that, taking into consideration the sources of income of the appellant as a judge and Chief Justice of the High Court, the mode and style of his living and the probable expenses required during the period of his judgeship/Chief Justiceship, it was reasonably believed that the appellant could not satisfactorily account for the possession of assets which were far disproportionate to his known sources of income. He was charged with the offence of criminal misconduct under clause (e) of s 5(1) of the Indian Prevention of Corruption Act, 1947.

Two months after the complaint against him was registered with the court, the appellant had retired on attaining the age of superannuation. When the matter came up for trial at the High Court of Madras, the appellant unsuccessfully moved the court to quash the criminal proceedings on a number of grounds. Section 124(4) of the Constitution of India provided that a judge of the Supreme Court or High Court could be removed from office only on the ground of proved “misbehaviour” or incapacity.

It was contended by the State that “misbehaviour” did not include criminal misconduct. All five judges of the Supreme Court of India, including VERMA J who wrote a dissenting judgment in a 4-1 decision, rejected the appellant’s argument on this point. VERMA J at 294D said:

“There can be no doubt that the expression ‘misbehaviour’ is of wide import and includes within its ambit criminal misconduct.”

Even if criminal misconduct is included in the meaning of “misbehaviour”, as used in s 87 of the Constitution of Zimbabwe, it does not follow that the procedure for the removal of a judge charged with a criminal offence from office must take precedence over the institution of criminal proceedings against him for the same offence. Mr Gauntlett, for the applicant, could not point to a provision in the Constitution which expressly secured primacy of the procedure for the removal of an errant judge from office over the initiation of criminal proceedings by the Attorney-General. If the makers of the Constitution intended to make the removal of a judge from office a condition precedent to the institution of criminal proceedings against him, they would have provided for it in clear terms.

The appellant in Veeraswami’s case supra also argued that the institution of criminal proceedings against him as a judge before he was removed from office was a breach of the principle of judicial independence. SHETTY J, writing for the majority, rejected the argument in these terms at pp 250C-251E:

“A suggestion was also made that since ‘misbehaviour’ under clause (4) of Article 124 of the Constitution and ‘criminal misconduct’ under s 5(1) of the Act being synonymous, the constitutional process for removal of the judge must be gone through first and only after his removal the prosecution if need be recommended in the same process. Otherwise, it is said that it would lead to anomaly since there is no power either in the Constitution or under any other enactment to suspend the judge or refuse to assign work to the judge pending his trial or conviction in the criminal court and the judge can insist on his right to continue till his removal even after his conviction and sentence.

It is inappropriate to state that conviction and sentence are no bar for the judge to sit in the court. We may make it clear that if a judge is convicted for the offence of criminal misconduct or any other offence involving moral turpitude, it is but proper for him to keep himself away from the court. He must voluntarily withdraw from judicial work and await the outcome of the criminal prosecution. If he is sentenced in a criminal case he should forthwith tender his resignation unless he obtains stay of his conviction and sentence. He shall not insist on his right to sit on the Bench till he is cleared from the charge by a court of competent jurisdiction. The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration.

The emphasis on this point should not appear superfluous. Professor Jackson says:

‘Misbehaviour by a judge, whether it takes place on the Bench or off the Bench, undermines public confidence in the administration of justice, and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This must be so when the judge commits a serious criminal offence and remains in office.’

(Jackson’s Machinery of Justice by J R Spencer 8 ed pp 369-370).

The proved ‘misbehaviour’ which is the basis for removal of a judge under clause (4) of the Article 124 of the Constitution may also in certain cases involve an offence of criminal misconduct under s 5(1) of the Act (Prevention of Corruption Act 1947). But that is no ground for withholding criminal prosecutions till the judge is removed by Parliament as suggested by counsel for the appellant. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. Even a Government servant who is answerable for his misconduct which may also constitute an offence under 1PC or under s 5 of the Act is liable to be prosecuted in addition to a departmental enquiry. If prosecuted in a criminal court he may be punished by way of imprisonment or fine or with both, but in departmental enquiry the highest penalty that could be imposed on him is dismissal. The competent authority may either allow the prosecution to go on in a court of law or subject him to a departmental enquiry or subject him to both concurrently or consecutively. It is not objectionable to initiate criminal proceedings against a public servant before exhausting the disciplinary proceedings and, a fortiori, the prosecution of a judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable.”

I respectfully associate myself with these views. The submission made by the applicant, and accepted by SANDURA  JA, accords primacy to the procedure for the removal of a judge from office for criminal misconduct over the institution of criminal proceedings on the basis of an interpretation of s 87 of the Constitution which fails to harmonise it with the provisions of s 76(4)(a) which confers upon the Attorney-General the power to institute or not to institute criminal proceedings in any case in which he thinks it is desirable to do so. Such a construction clearly assumes that the makers of the Constitution had made a mistake in failing to provide for the primacy of the procedure for the removal from office of a judge charged with a criminal offence over the institution of criminal proceedings against him.

But in Gupta v Union of India [1982] 2 SCR 365 FAZAL ALI J at 749D750A, quoting what DAS J said in Bysack v Sham Sunder Haldar [1953] SCR 533, warned:

“‘It must always be borne in mind, as said by LORD HALSBURY in Commissioner for Special Purpose of Income Tax v Pemsel (LR [1891] UKHL 1; (1891) AC 531 at p 549), that it is not competent for any court to proceed upon the assumption that the Legislature has made a mistake. The court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the court cannot, as pointed out in Crawford v Spooner [1846] EngR 1209; (6 MOO PC 1) aid the Legislature’s defective phrasing of an Act or add and amend, by construction, to make up deficiencies which are left in the Act’.

Thus, this court has clearly held that in construing a statutory or a constitutional provision, the court should not presume that the Legislature has either committed a mistake or has omitted something which was very necessary. DAS J very rightly remarked that it was not for the court but for others to remedy the defect, if any, found in a statutory provision.”

Thus, where the language used is plain and unambiguous the court is not entitled to go behind the language so as to add or supply omissions. Such a course of action would amount not to interpretation but to interpolation of the statutory or constitutional provisions and is against all the well established canons of interpretation of statutes. (See Gupta supra at 756 C-E).

The makers of the Constitution entrusted the Attorney-General with the power to institute or not to institute criminal proceedings in any case and placed no limitations on the exercise of his discretion in the form of factors to be taken into account. To the contrary, the Constitution secured for him independence from any direction or control from any person or authority, including a court. It would therefore be a clear violation of the provisions of s 76(7) of the Constitution were this Court to declare that the Attorney-General cannot institute criminal proceedings against the applicant for criminal offences charged against him before the procedure for his removal from office had been gone through.

The argument was that the institution of criminal proceedings before the procedure for removal of a judge from office was gone into and completed violated judicial independence secured for the applicant in s 79B of the Constitution.

There are two components of judicial independence. There is individual independence, which relates to the judge when he or she is performing adjudicatory functions of the State, that is to say, hearing cases and deciding upon the facts. There is the institutional independence, which secures the judiciary office, or courts, from interference from the other organs of the State.

There is no doubt that judicial independence is a fundamental principle in any democratic system of government. That, however, does not mean that the judiciary is protected from all forms of relationships with other organs of the State. What is clear is that the judiciary is protected against those relationships that may have the effect of interfering with its adjudicating authority and function. The judiciary is protected in the exercise of the authority and function conferred upon it by the Constitution to the exclusion of the other constitutional functionaries.

Section 79B of the Constitution, for example, makes it very clear that a judge shall not be directed or controlled by any person or authority whilst he is exercising his adjudicating authority. The exception in s 79B of the Constitution allowing for enactment of a written law placing a member of the judiciary under the direction or control of another member of the judiciary reinforces the view that the independence protected relates to adjudication of cases as the power to direct judges in the execution of their decision-making duties is regarded as a judicial power to be entrusted only to another member of the judiciary.

A careful reading of the provisions of s 79B embodying the principle of judicial independence, raised by the applicant as a shield against the institution of criminal proceedings against him, suggests that it relates to individual independence of a judge when discharging adjudicating functions. Envisaged is a situation where there are times when a judge would not be exercising his judicial authority.

It cannot be argued that when a judge commits a criminal offence at a time when he is not involved in the adjudication of a case he cannot be arrested and charged with that offence on account of the principle of judicial independence. Sole reliance on the power of removal to deal with such cases is clearly unrealistic.

In Gupta’s case supra DESAI J at 1010H-1011G said:

“Undoubtedly judiciary, the third branch of the Government, cannot act in isolation. They are ensured total freedom, of course, after entering the office, from any overt or covert pressure or interference in the process of adjudicating causes brought before them and to this end they are ensured tenure, pay, pension, privileges and certain basic conditions of service. The judiciary like any other constitutional instrumentality has, however, to act towards attainment of constitutional goals. …

It would thus unquestionably appear that the independence of judiciary is not to be determined in all its ramifications as some a priori concept but it has to be determined within the framework of the Constitution. True, that the thrust is to ensure that adjudications are untrammeled by external pressures or controls and it was conceded that independence of judiciary under the Constitution is confined to the adjudicatory functions of the courts and tribunals and they are insulated from executive control in that behalf.”

The allegations made against the applicant, on which the criminal proceedings were founded, were that he had sought to influence or direct his colleagues to order the release of his business partner’s passport in an application by the latter for alteration of his bail conditions imposed by a court in a case in which he was being tried on a murder charge. The allegation was that the applicant wanted to have a favour shown to his business partner.

The applicant’s actions were said to constitute a contravention of s 4(a) of the Prevention of Corruption Act and an attempt to defeat the course of justice. At the time the applicant is alleged to have committed these offences he was not engaged in the adjudication of a case. He was not exercising his judicial authority. The allegations suggest instead that he would have been committing the very offences which were created by the legislature for the purpose of protecting judicial independence from corrupt practices.

The institution of criminal proceedings against the applicant by the Attorney-General was not an intervention in any judicial process over which the applicant as a judge was presiding. It was, instead, an initiation of a different process altogether, namely, the trial of the applicant on the charges preferred against him.

The two proceedings, that is, the removal of a judge from office and prosecuting him for a criminal offence, are separate processes emanating from the exercise of co-ordinate powers conferred upon two different constitutional functionaries. The purposes to be achieved are different. The object of one procedure is the conviction and sentencing of the applicant should the misbehaviour be proved beyond reasonable doubt; whilst that of the other is his removal from office.

The above construction is consistent with what prevails in other jurisdictions. In Chandler v Judicial Council [1970] USSC 160; 398 US 74 (1970) MR JUSTICE DOUGLAS at 139 said:

“Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress.”

At p 140 MR JUSTICE BLACK had this to say:

“Judges in our system were to hold their offices during ‘good behaviour’, their compensation was not to be ‘diminished during their continuance in office’, and they were to be removed only after impeachment and trial by the United States Congress. … Judges, like other people, can be tried, convicted, and punished for crimes.”

Article 106 of the Korean Constitution, for example, provides that no judge shall be removed from office except by impeachment or a sentence of imprisonment, suggesting that the institution of criminal proceedings against a judge charged with a criminal offence can take place before the procedure for his removal from office has been gone into.

In Chandler’s case supra no suggestion was made that the prosecution of a judge for a criminal offence could not take place before the impeachment procedure had been gone into and completed.

The statement by the CHIEF JUSTICES of Botswana, Malawi, Mauritius, Namibia, South Africa, Swaziland, Tanzania, Uganda and Zambia, quoted by SANDURA  JA in his judgment, cannot be authority for the proposition that the Constitution of Zimbabwe requires that the institution of criminal proceedings against a judge for a crime shall not be undertaken until the procedure for his removal from office under s 87 has been gone into and completed. There is clearly no provision supporting this construction in our Constitution. All that can be said is that the Constitution is silent on the matter. The statement can only be taken to be an expression of what is desirable. That in the constitutional scheme is a matter for the Attorney-General to take into account in the exercise of his wide discretion whether to institute or not to institute criminal proceedings against a judge at a particular time. It is not the duty of this Court to tell the Attorney-General how to exercise his discretion.

I would accordingly support the order made only to the extent that it declares that the arrest, detention and remand of the applicant contravened the provisions of ss 13(1) and 18(1) of the Constitution of Zimbabwe and dismiss the application for an order to the effect that the arrest, detention and remand of the applicant violated his rights under ss 79B and 87 of the Constitution of Zimbabwe. I agree with the order on costs.

ZIYAMBI  JA: I agree with the judgment of MALABA  JA.

GWAUNZA  JA: I agree with the judgment of MALABA  JA.

UCHENA  AJA: I agree with the judgment of MALABA  JA.

Byron Venturas & Partners, applicant's legal practitioners

Civil Division of the Attorney-General’s Office, respondents' legal practitioners

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