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Zimbabwe Briefing - Issue 119
Crisis in Zimbabwe Coalition (SA Regional Office)
October 17, 2013

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“The Government is not supreme at all, the Constitution is” - towards full implementation of the new Constitution

The Crisis in Zimbabwe Coalition has asked me to say a few points on what is evidently a pertinent subject of the need to align our laws to the new constitution. At the outset it is important to reaffirm that aligning our laws to be in compliance with the new constitution is a legal and constitutional obligation if the national values as codified in the new constitution are to be realized and for our constitution to be a living document rather than one for the archives. Aligning the laws to the new constitution is also necessary to give legitimacy to those who govern as their election and assumption of office was in terms of the constitution and they swore to adhere to and uphold the constitution in the exercise of their public mandate.

Zimbabwe is a constitutional democracy. This means that there is constitutional supremacy. That the constitution of Zimbabwe is the supreme law, there is no question. You just need to refer to chapter 1 section 2 of the constitution of Zimbabwe, which unequivocally states that

(1) 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.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.

The way in which this constitutional clause on constitutional supremacy is worded in sub-section 1 is critical and interesting. It categorically states that laws, practices, customs and conduct that is not consistent with the constitution is “invalid to the extent of the inconsistency” (own emphasis). This seems to place the obligation on authorities to make laws consistent with the constitution before they can validly apply such laws in the governance function. Put simply, the constitution does not compel citizens or people in Zimbabwe to comply with unconstitutional laws as they are invalid, rather than potentially invalid. In other words it is wrong or cannot be reasonable to expect law abiding people to comply with unconstitutional and therefore invalid laws.

Putting this in practice is going to place people in Zimbabwe into potential conflict with the authorities who would expect that people comply with any law on the statute books unless such law has been repealed, amended or declared unconstitutional by a court of law. This then takes us to sub-section 2 of Chapter 1 section 2 of the constitution. It places obligations that are binding “on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level” (own emphasis). This clause is an important clause as it places an obligation on all branches of government to implement the constitution to make Zimbabwe realize its national values as per the new constitution. Given the purport of this clause, the previous approach of the Supreme Court of Zimbabwe sitting as a constitutional court in the ANZ case of adopting the dirty hands doctrine in constitutional challenges now looks untenable.

In the dirty hands doctrine case, the Supreme Court took the position that a person (juristic or human) who is challenging the constitutionality of a law, must first comply with that law before approaching the court for protection of constitutional rights. In essence given the new section, other than imposing a duty on the constitutional court to conduct itself in a way that is constitutional and legal (valid), it also specifically declares unconstitutional law invalid, raising the real logic that the dirty hands doctrine which presumes the law legal unless declared illegal is in itself potentially inconsistent with the new values that this constitution tries to espouse.

Human rights and constitutional litigation lawyers have been given an opportunity to test the resolve of the new constitutional court to play its role of contributing to the transformation of society to live by the new values. There are a number of laws and practices that immediately come to mind as creating fodder for potential floodgates in constitutional litigation. These include but are not limited to all laws that violate fundamental rights such as liberty, association, movement and expression. The new constitution reaffirms such rights as fundamental in the expanded bill of rights. Other areas of potential constitutional litigation include the justice ability of economic, social and cultural rights including the right to life, employment, education, health and safe environment.

Practices such as prolonged detention of suspects including through the use of section 121 of the Criminal Code will also be areas for potential constitutional litigation. The Criminal Law Codification Act, the Public Order and Security Act, the Access to Information and Protection of Privacy Act, the Broadcasting Services Act, the Money laundering laws, the laws that allow for invasion of privacy including recording and documentation of private conversations in e-mails, phone calls including mobile calls, internet browsing may also be fertile for legal challenges and reform. Our investment laws may need reform and challenge to the extent that our desperation for foreign direct investment (FDI) has opened up the country to primitive extractive practices that have degraded our environment and exposed our citizens and indigenous communities to violations of their socio-economic rights.

The requirement for all state institutions and branches of government to conform to the constitution and to implement it also means that the laws that create constitutional bodies and their administrative and procedural framework also needs to be reformed in order to give greater independence, impartiality, accountability and professionalism to such bodies. Parliament has a responsibility to ensure that this happens. Some of the critical constitutional and legal bodies that need this alignment of laws and practices to meet their constitutional obligations and man-date include but are not limited to the Courts, the Human Rights Commission, the Electoral Commission, the anti-corruption commission, the land commission and the environmental management agency.

The judiciary is going to be a key branch of government in checks and balances to ensure that it contributes to society transformation. As former RSA Constitutional Court Justice Zak Yacoob said “if the judiciary is to transform, the values of the Constitution should be of the most importance when judges apply their minds and when they are appointed…Judges in those (Apartheid) days judged in favour of authority…The rich and poor were certainly not treated equally in our courts...and not judged equally. There was a great deal of arrogance and rudeness…everybody must be treated equally. The values of the Constitution are supreme.... The government is not supreme at all, the Constitution is” (own emphasis).

In ending I need to reaffirm that the laws of Zimbabwe need to be audited to make them consistent with the new constitution. A serious audit needs to be done professionally and deliberately followed by a systematic advocacy programme by civil society. The wording of the constitutional supremacy clauses of our constitution has placed a huge onus on the government to embark on a sustained programme to re-align the laws to conform to the constitution. Sadly this is not happening at the speed that it needs to be done to give meaning to our new national values. Happily though, the constitution is worded in a way that will make it difficult for the government to implement unconstitutional and therefore “invalid” laws. Let us hope that our courts will stand up to the government and enforce separation of powers if and when, as it often happens, the government tries to implement invalid laws rather than embark on law reform to give meaning to our new constitution.

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