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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

Fax: +41 22 917 9003

Dear Sir


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
Zimbabwe Lawyers for Human Rights

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