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.
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