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Urgent
appeal on the Constitutional Amendment (No.17) Act
Zimbabwe Lawyers For Human Rights (ZLHR)
September 06, 2005
Mr. L Despouy
Special
Rapporteur
Independence
of the Judges and Lawyers
Office
of the High Commissioner for
Human Rights
United Nations Office at Geneva
8-14 Avenue
de la Paix
1211 Geneva 10
Switzerland
Fax: +41 22 917 9003
Email: urgent-action@ohchr.org
Dear Sir
URGENT APPEAL
ON THE CONSTITUTIONAL AMENDMENT (NO.17) ACT
Zimbabwe Lawyers
for Human Rights (ZLHR) is a registered professional membership
organisation of lawyers working for the promotion and protection
of human rights in Zimbabwe. We hold Observer Status with the African
Commission on Human and Peoples’ Rights, Affiliate Status with the
International Commission of Jurists, and form the Secretariat of
the SADC Lawyers’ Association Human Rights Committee.
We are calling
on you in your esteemed capacity as the Special Rapporteur on the
Independence of the Judges and Lawyers to make an urgent intervention
in Zimbabwe on the Constitutional Amendment (No. 17) Bill, which
was passed by the Parliament of Zimbabwe on the 30th
of August 2005. As we appeal to you, the Act is awaiting Presidential
assent and will become enforceable thereafter.
In summary,
the Constitutional Amendment Act No.17 seeks to confirm the acquisition
by, and vesting of full title in, the State of agricultural land
for resettlement purposes which took place pursuant to the Land
Reform Programme beginning in 2000 without compensation (except
for improvements effected prior to acquisition), and provide for
the acquisition in the future of agricultural land for resettlement
and other purposes by the insertion of Section 16B. The Act will
allow for the retrospective operation of the law in relation to
such acquisition and vesting of full title. It will further remove
the jurisdiction of the Courts of Zimbabwe to determine the merits
of any such acquisition or any other matter relating to that land
as envisaged by section 18(9) of the Constitution.
Section 18(9)
of the Constitution provides that ‘Subject to the provisions of
this Constitution, every person is entitled to be afforded a fair
hearing within a reasonable time by an independent and impartial
court or other adjudicating authority established by law in the
determination of the existence or extent of his civil rights or
obligations.’ The effects of the provisions in the Bill will effectively
render this protection of no value to affected litigants.
Once the President
has assented to the Act, the State will be empowered to acquire
property, in particular land, without notice to affected landowners
or the possibility of them challenging such acquisition through
the Courts of Zimbabwe. ‘Agricultural land’ is not defined in the
Bill, and therefore a majority of landowners in Zimbabwe today can
potentially be affected. Any anomaly in the gazetting or acquisition
of the land cannot be contested in court as long as it is
purportedly carried out in terms of the new Constitutional Amendment
Act.
As a result
of this Act, an entire category of landowners will effectively have
their constitutional right to protection from deprivation of property
summarily removed, on the basis that they own agricultural land.
The Constitution
itself in its current form provides that all persons are entitled
to the fundamental rights and freedoms contained in the Declaration
of Rights. It provides under Section 23(1) (a) and (b) that no law
shall make any provision that is discriminatory either of itself
or in its effect and that no person shall be treated in a discriminatory
manner by any person acting by virtue of any written law or in the
performance of the functions of any public office or authority.
Again, this protection has been overridden by the provisions of
the Bill.
We draw your
attention to the contemplated ouster of the jurisdiction of the
Courts of Zimbabwe, which will prevent the Judiciary from considering
whether the actions of the other arms of government are within the
confines of the Constitution and other relevant laws of the land.
This contravenes fundamental international human rights instruments
which Zimbabwe has ratified and which protect the independence of
the Judiciary such as the International Covenant on Civil and Political
Rights (1991), African Charter on Human and Peoples Rights (1986)
and the International Covenant on Economic, Social and Cultural
Rights (1991) among others. It also undermines the very principle
of constitutionalism, which requires a separation of powers and
the protection of the independence of the Judiciary.
There are currently
a plethora of land cases already before the Administrative Courts,
the High Courts, and the Supreme Court of Zimbabwe, which will be
affected by this provision. They will be prematurely terminated
should this provision pass, notwithstanding the individual merits
and circumstances of each case and will provide no compensation
for litigants for their wasted costs. Some cases have been in the
court system for many years now.
There is also
concern that the Judiciary itself was not consulted on such a blatant
withdrawal of its constitutional mandate and encroachment by the
Executive and Legislature into its jurisdiction. The Legislature
has, by passing the Act, condoned potential future ousters of the
functions of the Judiciary by the Executive in other areas, which
could eventually lead to a complete removal of the Courts of this
land, causing a complete breakdown of the rule of law and no legal
protection for any person living in Zimbabwe whose rights and fundamental
freedoms are violated.
The Courts of
the land are effectively being reduced to legal advisors of Government
as and when it pleases because it can now simply legislate that
it merely wants their opinion on certain issues, which it can disregard
at its pleasure, (for example around the issue of quantum of compensation)
but it is not willing to allow the courts to decide on the lawfulness
of its conduct. Now the Courts cannot review patently unlawful and
or unconstitutional laws and or constitutional amendments. This
function will be left to the Executive and its disputed majority
in Parliament.
We therefore
call on you in your capacity as the Special Rapporteur on Independence
of Judges and Lawyers to make an urgent intervention to the government
of Zimbabwe and the President in particular to:
- refrain from
assenting to the Act by putting his signature to the Bill;
- refer the
Bill back to Parliament for removal of the provisions which undermine
the independence of the Judiciary, their operating environment
and shrink their jurisdiction;
- request the
government of Zimbabwe to carry out a wide and representative
consultative process with the judiciary and all other stakeholders
before constitutional changes or reform are enacted.
We look forward
to your urgent intervention in this matter in order to safeguard
the independence of the judiciary, to protect the proper functioning
of the courts, to assure the people of Zimbabwe that they can expect
a fair judicial hearing where their fundamental rights and freedoms
are endangered, and to restore the rule of law in Zimbabwe.
Yours faithfully
Arnold Tsunga
Director
Zimbabwe
Lawyers for Human Rights
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