Lawyer takes mbanje fight to Con Court

Harare lawyer Tapiwanashe Mukandi has approached the Constitutional Court challenging the dismissal of his High Court application seeking the legalisation of and cultivation of mbanje.

Mukandi on July 13 this year, filed an application challenging laws that criminalise possession, consumption as well as cultivation of cannabis in Zimbabwe.

In her October 31 judgment, High Court judge Justice Gladys Mhuri ruled that cannabis has potentially harmful health effects if left unchecked.

In his ConCourt appeal filed on Tuesday this week, Mukandi argued that the High Court erred in its interpretation of the provisions of the Criminal Law (Codification and Reform) Act.

“Appellant hereby appeals against the whole final judgment of the High Court of Zimbabwe sitting at Harare, being judgment HH589-23 per the Honourable Mhuri J, in case No HCH 4650/22 handed down on October 31, 2023,” Mukandi’s counsel, Tererai Mafukidze instructed by Tapiwa Chivanga of Scanlen & Holderness submitted in court.

“The provisions of section 156(1)(a), (b), (c), (d), and (e) as read with the definition of ‘deal in’ in section 155 of the Criminal Law are inconsistent with sections 57, 56(1), and 52 of the Constitution and are constitutionally invalid only to the extent that they make the cultivation in a private place, use, or possession by an adult person for his or her own consumption in private a criminal offence.”

Mafukidze said the court erred in holding that international laws and conventions to which Zimbabwe is a party, namely the United Nations Single Convention on Narcotic Drugs, 1961, oblige the country to absolutely ban the use, possession, and cultivation of mbanje.

“The court a quo erred in failing to hold that the international laws and conventions do not supersede the international human rights instruments to which Zimbabwe is a party, as well as the provisions of the Constitution of Zimbabwe insofar as the cultivation, use, or possession of cannabis in private by an adult person for his or her own consumption in private is concerned.”

They also said that Parliament should rectify constitutional defects within the next 12 months before the order being sought is fully implemented.

“Should the Parliament of Zimbabwe fail to rectify the constitutional defects within twelve (12) months of this order, then the order will become final,” he said.

“Until Parliament has made the amendments contemplated or the period of suspension has expired, it will be deemed to be a defence to a charge under the provisions set out for any adult charged with the use, possession, or cultivation of cannabis in a private dwelling or private place for personal consumption.”

Ministers Douglas Mombeshora (Health and Child Care), Ziyambi Ziyambi (Justice, Legal and Parliamentary Affairs) and Kazembe Kazembe (Home Affairs) were cited as respondents.

NewsDay