is the “Rule of Law?”
states that public officers owe a duty to everyone in Zimbabwe
to observe and uphold the rule of law [sec 18(1a)], and the “Kariba
Draft” Constitution contains a similar provision. However,
most people - including lawyers - have only the vaguest idea of
what the expression “rule of law” means.
This is understandable
because it is an elastic concept. Fundamentally it means that
people’s rights and obligations must be determined by laws
rather than by individuals or groups of individuals exercising
an arbitrary discretion. From this fundamental concept several
principles are derived:
to the concept of the rule of law is the idea that all the three
branches of government must operate within their own particular
spheres: the Executive is restricted to administration, the Legislature
to enacting laws, and the Judiciary to adjudicating legal disputes
and interpreting the laws. All three branches are subject to the
rule of law in relation to the new Constitution
How does the
rule of law relate to the new constitution that is being prepared
by COPAC; or, more precisely, can the new constitution ensure
that the rule of law will apply within Zimbabwe? It can, through
the following means:
For the rule of law to prevail the powers of each branch of government
must be limited. If the new constitution provides for a powerful
executive with extensive discretionary powers then there cannot
be the rule of law.
must be subject to the law: Everyone, including government officials
and the State itself, must be subject to the law. This should
be stated expressly, but in addition it should be reinforced by
provisions giving ordinary people the right to sue the State and
its officials for infractions of their rights. Section 24 of the
present Constitution goes some way towards this by giving people
a right to apply to the Supreme Court for redress for infringements
of their rights under the Declaration of Rights. No immunity should
be given to any State official, from the highest to the lowest.
If, for example, it is felt that the work of government might
be impeded if the President could be sued personally in the courts,
then the President’s immunity from legal action should be
lifted as soon as she or he leaves office.
of powers: The separate roles of the different arms of government
must be clearly stated in the Constitution, and there should be
a statement that, as a general principle, their powers should
be kept separate. It should be clear, for example, that a law
such as the Presidential
Powers (Temporary Measures) Act is contrary to constitutional
principles. The power of the Executive to appoint members of the
legislature, whether directly or indirectly, should be removed
or severely curtailed.
of the judiciary: A mechanism must be established to ensure that
members of the judiciary - magistrates as well as judges - are
appointed by an independent body. The Judicial Service Commission
established under the present Constitution is inadequate for this
purpose since most of its members are appointed by the President.
It would be better if its members were appointed after public
hearings by a select committee of Parliament; better still if
judges were selected by the Judicial Service Commission and appointed
by the President after being approved by Parliament [this could
be a useful role for the Senate].
enforcement of laws: The Attorney-General should remain responsible
for deciding whether or not to enforce the law through criminal
prosecution. He or she should, however, be appointed by an impartial
body in the same way that judges of the High Court are appointed.
He or she should not be a member of Parliament or the Cabinet
and like judges should not make public his or her party affiliation.
the judiciary, the enforcement of the law is mainly in the hands
of the police. Their impartiality could be improved, if not ensured,
by giving the Police Service Commission power to oversee the operations
of the Police Force and to institute measures to improve its efficiency
and impartiality. And a police complaints office could be enshrined
in the constitution.
and intelligence services should have nothing whatever to do with
the enforcement of the civil law.
of internationally-recognised fundamental rights and freedoms:
Respect for human rights is not a necessary ingredient of the
rule of law - they are different concepts - but nonetheless if
fundamental human rights and freedoms are recognised and enforceable
under the Constitution then the government is more likely to respect
the rule of law. The constitution might well provide that international
conventions become part of Zimbabwean law once they have been
ratified by Parliament.
good laws: A constitution cannot ensure that all laws passed by
the Legislature are good laws, but it can go some way towards
this end. Two ways to do this are:
At the beginning
of this bulletin, we mentioned section 18(1a) of the current Constitution,
which states that all public officers have a duty towards every
person in Zimbabwe to act in accordance with the law and to observe
and uphold the rule of law. The importance of this provision should
not be underestimated. In the clearest terms it states that all
public officers - and the term encompasses State employees from
the President downwards - have a duty to act in accordance with
the law, and that the duty is owed to “every person in Zimbabwe”.
What this means is that if, for example, a police officer fails
to investigate a politically-motivated assault, then everyone
- not just the victim - can sue the officer for breach of duty.
And if the Registrar-General’s Office illegally removes
someone’s name from the voters’ roll then everyone,
not just the voter, can apply to court for the person’s
name to be restored to the roll. The traditional view, that only
people who have a material interest in a matter can apply to a
court for redress, no longer applies in relation to breach of
duty by public officers [though it probably continues to apply
to applications direct to the Supreme Court under section 24 of
every effort to ensure reliable information, but cannot take legal
responsibility for information supplied.