HARARE
–
The
High
Court
has
struck
off
the
roll
a
constitutional
challenge
by
Harare-based
medical
practitioner
Dr
Seleman
Saidi,
who
was
banned
from
general
practice
because
his
faith
forbids
him
from
administering
blood
transfusions.
Justice
Samuel
Deme
ruled
that
Saidi’s
application
was
“premature”
and
that
he
should
have
first
pursued
the
normal
appeal
process
provided
under
the
Health
Professions
Act
before
turning
to
constitutional
litigation.
“The
applicant
ought
to
have
exhausted
the
appeal
procedure
before
resorting
to
the
constitutional
remedy,”
Justice
Deme
said.
“The
present
application
was
prematurely
instituted
before
exhausting
other
legal
remedies.”
Dr
Saidi
had
sued
three
respondents
—
the
Medical
and
Dental
Practitioners’
Council,
the
Health
Professions
Authority
of
Zimbabwe,
and
the
Minister
of
Health
and
Child
Care.
He
was
represented
by
Professor
Lovemore
Madhuku,
while
Advocate
Tawanda
Zhuwarara
appeared
for
the
first
and
second
respondents.
The
third
respondent
did
not
participate
in
the
proceedings.
Dr
Saidi,
a
registered
doctor,
was
disciplined
by
the
Medical
and
Dental
Practitioners’
Council
and
the
Health
Professions
Authority
after
refusing
to
perform
or
authorise
blood
transfusions
on
religious
grounds.
Following
a
disciplinary
hearing,
the
two
bodies
found
him
guilty
of
unprofessional
conduct
and
restricted
his
work
to
public
health,
forensic
pathology
and
histopathology.
Saidi
then
turned
to
the
High
Court,
arguing
that
the
decision
infringed
his
constitutional
rights
to
freedom
of
conscience
(Section
60)
and
freedom
to
choose
and
carry
on
a
profession
(Section
64).
Through
his
lawyer,
Professor
Madhuku,
Saidi
argued
that
his
beliefs
about
the
sanctity
of
blood
were
protected
by
the
Constitution
and
that
he
should
be
allowed
to
continue
general
medical
practice
as
long
as
he
referred
patients
needing
transfusions
to
other
doctors.
“The
applicant
maintains
his
belief
that
blood
is
sacred
and
therefore
he
would
not
order
or
administer
blood
transfusions,”
Madhuku
argued,
insisting
his
client’s
stance
should
not
cost
him
his
licence.
Justice
Deme
agreed
with
Advocate
Zhuwarara,
who
argued
that
Saidi
should
have
appealed
the
council’s
decision
under
Section
128
of
the
Health
Professions
Act
instead
of
immediately
filing
a
constitutional
application.
Zhuwarara
invoked
the
principle
of
subsidiarity,
which
holds
that
a
litigant
must
use
existing
legal
remedies
before
invoking
constitutional
provisions.
“It
is
the
settled
position
of
our
law
that
where
there
exist
other
remedies,
a
litigant
may
not
approach
a
court
on
a
constitutional
basis
and
ignore
the
remedies
at
his
disposal,”
the
judge
quoted
from
a
previous
Constitutional
Court
ruling.
Justice
Deme
said
the
appeal
route
was
“more
effective”
because
it
allowed
the
court
to
directly
review
the
disciplinary
authority’s
decision,
while
still
preserving
Saidi’s
right
to
escalate
the
matter
later
if
necessary.
“The
appeal
procedure
is
more
effective
in
my
view,
as
it
allows
the
court
to
directly
deal
with
the
issues
which
arose
from
the
second
respondent’s
decision,”
the
judge
said.
“After
exhausting
all
appeal
mechanisms,
he
may
then
lodge
a
constitutional
application
with
the
Constitutional
Court.”
The
court
also
criticised
Saidi’s
unexplained
decision
to
withdraw
an
earlier
appeal,
noting
that
his
reasons
were
vague
and
unconvincing.
“The
reason
for
his
abandonment
of
the
appeal
mechanism
remains
a
mystery,”
Justice
Deme
said.
“In
the
absence
of
further
amplification,
one
wonders
why
the
appeal
procedure
was
abandoned
in
favour
of
the
constitutional
remedy
which
is
more
rigorous.”
Ultimately,
the
court
found
that
Section
85(2)
of
the
Constitution,
which
guarantees
access
to
courts,
could
not
override
the
subsidiarity
principle,
and
that
the
matter
must
first
be
handled
through
existing
statutory
channels.
The
application
was
therefore
struck
from
the
roll,
with
no
order
as
to
costs,
as
the
judge
noted
the
case
involved
constitutional
issues
of
public
interest.
“This
is
a
constitutional
matter
which
does
have
a
bearing
on
the
public
interest.
An
order
that
there
shall
be
no
order
as
to
costs
is
appropriate
in
the
circumstances,”
he
ruled.
The
ruling
means
Dr
Saidi
remains
barred
from
general
medical
practice
and
must
first
challenge
the
disciplinary
decision
through
the
Health
Professions
Authority’s
appeal
process
before
pursuing
constitutional
remedies.