STRICTLY

CONFIDENTIAL .

ZIMBABWE REPUBLIC POLICE STAFF COLLEGE

(An Associate College of the University of Zimbabwe)

ASSIGNMENT MARK FORM

A. Department …… LEGAL STUDIES…………………………

Lecturer ……. SGT Ngombengombe……………
Programme ……… DIPLOMA IN LAW…………………………………
Course Title ……… Interpretatiof of Statutes
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Assignment No. …… (ONE)…………………………………

Name ……… MUNYAKA ASHTON……
Address …… ROOM 20 STAFF HOSTELS
MORRIS
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Date Received …………………………………………. Time ……………………………

B. Lecturer’s Comments ……………………………………………………………………………………………………

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Lecturer ……………………………………………………………………………………………………….

Grade ……………………………………………………………………………………………………….

Date Marked …………………………………………………………………………………………………………

To Students: Please complete Assignment Mark Form in Triplicate and

return the copies with assignment. One copy will be returned to you
with tutor’s comments and Grade attached to your marked assignment.
 To Lecturer: Please use ballpoint or type to ensure a good copy
when completing Section B.

‘ The principle of legality is a myth in Zimbabwe’. Discuss.

The purpose of this script is to ascertain the validity of the statement, ‘The principle of
legality is a myth in Zimbabwe’. In that attempt, this writer is going to examine the five sub-
principles which constitute the definitional elements of the Principle of legality. The writer is
also going to examine the criminal law system in Zimbabwe in order to answer the question
posed.
According to Snyman1, legality encompasses five rules that become relevant when deciding
on the guilt of the accused and the applicable punishment to be imposed. As will become
evident, these rules do not exist in complete isolation from each other and a certain degree of
overlapping takes place.
Generally, the principle is recognized as nullem crimen sini lege, which simply means no
crime without law. This principle serves as a safe guard against subjective application of the
law by state organs. The state and it’s officials must also subordinate themselves to the law.
The Constitution of Zimbabwe provides for the supremacy of the constitution as follows; 2 “
This constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct
inconsistent with it is invalid to the extent of the inconsistency.” This means that every
government function and the public submit to the constitution. The law-making processes of
the country are also provided for in the constitution with the legislature being solely
conferred the law making authority. Part 2 of the Constitution imposes rights, also referred to
as Bill of rights, which the principle of legality seek to protect against infringement. Section
117(2)(b), confers on the legislature powers to make all laws of the country. Thus all law
emanate from the supreme law.
The principle then asserts that no one should be convicted of a crime by any court for a
conduct that was not recognised by the law during the time it was committed (ius acceptum).
In other words, the courts must not create new crimes which are not provided for by statutory
provisions.
In Zimbabwe this sub-principle is incorporated in to our criminal law system by the
Constitution of Zimbabwe which provides,3 “Any person accused of an offence has the
following rights, ‘not to be convicted of an act or omission that was not an offence when it
took place’. The criminal law code at section 3 repeals the Roman Dutch law, also regarded
as common law. In its preamble, the criminal law code through section 18 (5) of the

1
1 Michelman (2007) 11-38.
2
2 Constitution of Zimbabwe Amendment No 20 2013
3
3 Constituion of Zimbabwe s70(1)(k)
Lancaster House Constitution of 1979 provided for adherence and compliance with the ius
acceptum principle, in particular sub-section (5) stipulated as follow as4;
“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 severe in the degree or description that the maximum
penalty that might have been imposed for that offence at the time it was committed.”
In a given society, there are practices and conducts that are wrong morally and religiously but
not constituting a crime. Although they might be forbidden by law, still this does not
certainly mean that they are crimes. In order for a statutory provision to create a crime, it
must hold a legal norm stipulating a rule of law, a criminal norm labelling such conduct as
criminal and attach a criminal sanction for noncompliance. It can only be assumed that a new
crime has been created where it appears unambiguously from the wording in the Act and in
cases of doubt the court should interpret the provision in favour of the accused.
Snyman posits that if parliament wishes to create a crime, an Act purporting to create such
crime will best comply with the principle of legality if it expressly declares (a) that the
particular type of conduct is a crime, and (b) what the parameters are of the punishment a
court must impose if it finds a person guilty of the commission of such crime. Accordingly,
the criminal laws of a country deemed to follow the principle of legality must be codified, so
as to make such conduct criminal and punishable. This was enunciated in the case of S v
Francis5 , Mr Francis was charged for absconding from a rehabilitation centre, regulation of
1971 Act made it clear that such act was a crime. However, a section of 1992 Act repealed
section of 1971 and it did not stipulate that such conduct which constituted a crime under
previous Act was still a crime. Held
“…”
Further in Zimbabwe, the criminal law code provides that “A person shall not be guilty of or
liable to be punished for a crime unless, the crime is defined by the code.”
The offender’s conduct must have been recognised as a crime prior to its commission (ius
praevium). In other words, no one should be charged for a conduct that did not constitute an
offence when it was acted. The creation of a crime with retrospect effect is prohibited. This
rationale comes from the principles of fairness and the idea of deserved punishment. Citizens
must be afforded notice of what constitutes criminal behaviour in order for them to make
informed decisions whether or not to engage in certain conduct. In terms of the Constitution
of Zimbabwe which provides6 ‘Every person has a right to fair trial. The right not be
convicted of an act or omission that was not an offence when it took place and the right not
to be tried for an offence pardoned or punished or already acquitted. What it means therefore
is that any provision that is created with retrospective application is null and void. Such
provision will be against the supreme law of the country.
4
4 Criminal Law Code s3(5)
5
5 S v Francis 1994(1) SACR 350 (k)
6
6 Constitution of Zimbabwe s69(1)&70(1)(k)
In the case of Nkomo and Another v Attorney General and Others Gubbay CJ, speaking for
the majority of the court had this to say7,

“It is a cardinal rule in our law dating probably from codex l: 14:7, that there is a strong
presumption against retrospective construction. Even were statutory provision is expressly
stated to be retrospective in its operation, it is not to be treated as in any way affecting acts
and transactions which have already been completed, or which stand to be completed shortly,
or in respect of which action is pending or has been instituted but not yet decided unless such
a construction appears clearly from the language used or arises by necessary implication”.

The law must be stated in clear terms (ius certum). The principle of legality prohibits vaguely
defined crimes and as a result the use of ambiguous language is barred. The ground for the
inclusion of this rule lies once again in the concept of sufficient notice. In cases where the
definition of a crime is so vaguely or ambiguously formulated an individual cannot be said to
have received adequate notice of the proscribed field of activity. Clearly defined crimes
prevent the state from exercising a wide prosecuting discretion which may be subject to
abuse. In S v Chimakure and Zimlnd Publishers Pvt Ltd, it was Held”...people should be able
within a reasonable certainty, to fore see the consequence of their conduct in order to act
lawfully, this is a fundamental element of law and order and therefore peace.
This principle is enunciated in the case of S v Mpofu and Ors, it was held 8” The right to
protection of the law entails that the law must 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 consequence which his chosen
course of conduct might entail.
This was also said in the case of the Sunday Times v United Kingdom. It was held9 “A norm
can be regarded as a law unless it is formulated with sufficient precision to enable the citizens
to regulate its conduct, he must be able if need be with appropriate advice to foresee to a
degree that is reasonable in circumstances, the consequence which a given action may
entail…”. Thus, the law must define essential elements of a crime and the law must not be
vague in this regard. The criminal law codification and reform act chapter [9:23], in its
entirety, is clear testimony of how much the Zimbabwean criminal law system upholds the
principle of legality.
In that regard, the Constitution of Zimbabwe provides that 10 any person accused of an offence
has the right to be informed promptly of the charge, in sufficient detail in order to enable
them to answer it. Words of a statute must not be formulated in an excessively wide context.
7
6 1993 (2) ZLR SC 422-429C,

8
7 S v Mpofu and Ors CCC-5-2016(8)
9
8 Sunday Times v United Kingdom 1979-80 2 EIRR 245 at 271 P 49
10
9 Constitution of Zimbabwe s70(b)
This may create room for arbitrary punishment by state officials on the citizens in violation of
the principle of legality. Snyman gives an example of an excessively wide formulated
provision as, “Any one who commits an act which is harmful to the community commits a
crime”. This kind of formulation is a kind of catch all drag net. No person will be left out for
any conduct harmful, instead of specific and particular stipulated conduct.

Statutory provisions must be interpreted in their strict terms. The courts must not interpret a
provision in such way that it will encompass conduct that was not included in the
construction of such provision. In other words, the courts must not extend the meaning of a
certain provision to cover an act that is not within the definition of a particular crime. The
Masiya v Director of prosecution case illustrates this principle in detail.
In the case of one Mr Masiya 11, who had had anal sexual intercourse with a 9-year-old girl
without her consent. Mr Masiya was convicted of rape in a regional court, under the common
law crime of ‘rape’. The essential elements of the crime of ‘rape’ under the common law, did
not include penetration of a male penis into the anus of a female person. On appeal to the
Constitutional Court, it was held in favour of Mr Masiya that his conviction by the lower
courts was based on the abominated practice of extending the definition of a crime by means
of analogy to accommodate an otherwise unprovided for conduct. Thus, Mr Masiya was
acquitted for ‘rape’ as defined in the common.
No person shall be sentenced for a punishment that is not stipulated by the law (nulla poena
sini lege). The courts must not sentence an accused person a sentence that is not provided at
law before the crime being punished for. According to Snyman 12 the four principles discussed
have been applied to the creation, validity, formulation and interpretation. When dealing with
the imposition of punishment, the ius acceptum, ius praevium, ius certum and ius strictum
principles apply equally.
In the same way as a court cannot find anyone guilty of a crime unless his conduct is
recognized by a statutory or common law as a crime, it cannot impose a punishment unless
the punishment, in respect of both its nature and extend, is recognized or prescribed by
statutory or common law. If the legislature creates a crime, it should, in order to best comply
with the principle of legality, also set out the punishment for the crime. For example, the
criminal law code chapter [9:07] provided as follow as;
47 Murder
(1) Any person who causes the death of another person
(a) intending to kill the other person; or
(b) realising that there is a real risk or possibility that his or her conduct may
cause death, and continues to engage in that conduct despite the risk or possibility; shall
be guilty of murder.

11
10 Masiya v Director of Public Prosecution 2007 2 SACR 435(CC)
12
11 Snyman Criminal law 2014 at 49
 (2) Subject to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07],
a person convicted of murder shall be sentenced to death unless
(a) the convicted person is under the age of eighteen years at the time of the commission
of the crime; or
(b) the court is of the opinion that there are extenuating circumstances; in which event the
convicted person shall be liable to imprisonment for life or any shorter period.
(3)A person convicted of attempted murder or of incitement or conspiracy to commit
murder shall be liable to be sentenced to death or to imprisonment for life or any shorter
period.

Thus, the criminal law code clearly and unambiguously criminalize, defines a conduct and
clearly sets out the punishment for the conduct.
If the punishment to be imposed for certain crime is increased, it must not be applied to the
detriment of the accused who committed the crime before the punishment was increased. The
constitution states that13 a person has got a right to be sentenced 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 sentence. This rule does not apply to cases which
the legislature has reduced the punishment.
The legislature must not express itself vaguely or unclearly when creating and describing
crime. When a provision in an Act which creates and prescribe punishment is ambiguous, the
court must interpret the provision strictly. That is a court may not extend by analogy the
provision which prescribes the punishment to cases which the legislature could not have in
mind.
In summation the principle of legality requires statutory crimes to be phrased clearly to the
level that individuals of ordinary cleverness need not speculate in order to determine whether
or not their conduct ascribes criminal liability. However, even in the case of statutory crimes,
it is impossible to strictly adhere to the requirements of complete clearness and certainty
because legal rules, by their very nature are formulated in general terms to encompass more
than one individual person or more than a single event. Further, it must be acknowledged
that there will always be a difference of opinion regarding the interpretation of statutory
crimes and their application, nonetheless it is the principle of legality and the generally
accepted rules of interpretation that assist in the successful implementation of punishing
statutes.
In conclusion, the Zimbabwe criminal law system undoubtedly complies with the principle
of legality. This has been observed throughout the discussion in which the statutory
provisions and the courts of the land have been noticed to comply. As such one may be
inclined to conclude that the statement posed above is not entirely true. To a greater extent,
the principle of legality is a reality in Zimbabwe.
However, as Snyman puts it, it is not possible to fully comply with the principle of legality.
This he attributes to the imperfections of the language as a means of communication. This
13
Constitution of Zimbabwe s70(1)(n)
writer concurs to that notion. On that note this writer opines that, the phraseology employed
in the construction of statutory provisions, somewhat defies the logic of the dictates of the
principle.
Considering the standard measure of an ordinary intelligent person, representing the intellect
of the whole country in its educational shortcomings, and the barrier posed by the language
itself, the principle flounders accordingly. Consequently, the construction of statutory
provisions in a language that is foreign to the generality of the country, to some extend
undermines the values of the principle of legality. Many a times accused persons get to
appreciate the criminality of their conduct after being explained to on arrest.
Additionally, accessibility of the criminal statutory provisions is minimal to the general
populace. All these factors serve as impediments against full adherence to the principle of
legality. This writer is of the opinion that if statutory provisions are also framed in the
vernacular languages common to the lot of the populace and also made accessible through
affordability and distributions to as far the remotest geographical locations of the land, the
principle will have been fully complied with.
BIBLIOGRAPHY
Burchell & Milton
Snyman, Criminal Law 2014
Constitution of Zimbabwe Amendement No 20 2013
Constitution of Zimbabwe of 1979
Criminal Law Codification and Reform Act chapter [9:23]
Criminal Law Code Chapter [9:07]
Case Laws
S v Francis 1994
S v Chimakure and Zimlnd Publishers pvt ltd 2013 (2) ZLR 466 (5)
Nkomo and Another v Attorney General
Sunday Times v United Kingdom 1997-80 2 EIRR 245 at 271 P 49
Masiya v Director of prosecution 2007 2 SACR 514© 517247(A)