Zimbabwe's President Emmerson Mnangagwa (left) and former Chief Justice, Luke Malaba

Shaping the ambiance of Zimbabwe’s Constitutionalism

With the three branches of Zimbabwe’s political system, the executive, legislature and judiciary, striving to advance their roles as contemplated by the trias politica or three pillars of the state doctrine, the question of shaping Zimbabwe’s constitutionalism has become pertinent.

Rebuilding the separation of powers doctrine among the three branches of the state is coming from the generality of the population, then the courts of law, and eventually, the legislature and the executive which accept the directives from courts of law. By extension, all the three branches of the state are gradually facing normativized demands for state institution accountability from the generality of the Zimbabwean population. The process of governmental and state accountability in Zimbabwe following the adoption of the Constitution of Zimbabwe in 2013, therefore, is constitutionally-intoned.

A watchful citizenry

The immediate demands of the Zimbabwean people — for transparency, accountability, responsiveness and justice, have naturally led to the focus on strategic impact and public interest litigation at the High Court or Constitutional Court. This rebirth of constitutionally-intoned demands, effectively, is in accordance with the social contract and essential features of the Constitution such as people’s sovereignty; national objectives; founding values and principles on democracy; Bill of rights and mandatory constitutional provisions.

At the very outset, citizen efforts are devoted on the need to place constitutional restraints on executive and legislative excesses. The growth of constitutional litigation around Parliamentary excesses or failures to follow legal or constitutional provisions is done through the active citizenship’s case selection strategies that help courts of law to be the last line of defence of the Constitution.

From 2013 to 2016, constitutional litigation was rudimentary and litigious because of what Chief Justice Luke Malaba then described as experimental constitutionalism. This had earlier been affirmed by the late Chief Justice Godfrey Chidyausiku Court in Mawarire v Mugabe and Others, when he liberalized legal standing. The Mawarire decision flexibly rejected the dirty hands doctrine which bars litigants from approaching courts of law when they are equally accused of violating certain provisions of the law. The Court equated the dirty hands doctrine to a doctrine which condemns litigants to situations where they come to court with hands that are dripping with blood. That was the zenith of constitutional litigation.

With time, some constitutional matters reversed the gains of strategic impact or public interest litigation because of poor quality of pleadings, mistiming of litigation, flawed referrals of cases for confirmation to the Constitutional Court and the use of judicial restraint by Concourt judges. Constitutional litigation was also gradually affected by the coming into effect of the rules of the Concourt and various practice directives that relate to set down of cases at the Constitutional matters.

Zim’s avoidance doctrine

The Court was also staffed by judges from different courts including the High Court. The Constitutional Court also became overly concerned with the use of the avoidance doctrine and its variants such as ripeness, mootness, subsidiarity and political question. The judges of the Constitutional Court would in many instances unanimously agree to invoke the avoidance doctrine especially where preliminary points were raised. The avoidance doctrine was seemingly judicialised if not ‘weaponized’ to avoid the merits of constitutional matters. In all cases where it was invoked, the avoidance doctrine became an effective element of judicial restraint.

Zimbabwe’s avoidance doctrine is also applied classically, without reference to developments from countries where it originated such as the United States of America. Its use frustrated litigants whose constitutional cases were dismissed based on subsidiarity, mootness or ripeness doctrines. This created a culture of doctrinaire judgeship.

Much the same process was followed when the Concourt decided matters of right to presidential pardon such as Chawaira and Others v Minister of Justice as if presidential pardon is a matter of legal procedure. Even the ripeness doctrine was not nuancely discussed in its classical, evolutionary or contemporary forms. Other cases such as Zinyemba v Minister of Lands had a significant bearing on Zimbabwe’s role as a safe destination for investment in land and related areas.

Compared to cases such as Anjin which dealt with mining disputes through the avoidance doctrine, the usage of the avoidance doctrine has a bearing on how mining investors could interpret Zimbabwe’s climate of investment. This is because the decision of courts that aren’t done on merit will definitely scare away investors, especially from the perspective of property rights protection.

These developments were changed by many factors. One of the most critical, initially, was the emergence of popular democracy through popular protests that ended the long reign of former President Robert Mugabe in 2017. Many civil society organizations, law-based organizations, and other categories of people with legal standing contemplated in section 85 of the Constitution revitalized the litigation vigor to approach superior courts to seek remedies for constitutional breaches.

The 2018 polls case and beyond

Even when the government of President Mnangagwa was elected in 2018, constitutional litigation revived the need for the people to participate in governmental accountability through the Chamisa presidential litigation case. The Concourt decided this case on the merits despite the fact that many preliminary points had been raised. There was widespread reportage of the case in the mainstream and social media, including on the gendered dimensions of the presidential candidates who were cited. The case was also broadcasted to the national and international world with lawyers dealing with the fulcrum and poisoned chalices in the case.

This case was to be replaced with cases that bore on the recall of Members of Parliament from the various formations of the MDC. Gradually, the ambience of Zimbabwe’s constitutional litigation and constitutionalism became more political than constitutional. The point of contention in all this relates to how an ordinary MP ceases to be a member of a political party before his seat is declared vacant. Put differently, there is also the need to understand the role of the Speaker of Parliament in the recalling MPs. The constitutional provisions seem to end on the delivery of a letter of recall from a political party from which the MP was elected into Parliament.

There has not been consensus or nuanced court adjudication on what was intended or not intended to be done by the Speaker upon receipt of a letter from the party that intends to recall an MP. Courts have however come to grapple with the provision on recall of parliamentarians from the position of the affected MP when it recently ordered MDC-A parliamentarians back to parliament based on the fact that the author of a recall letter was improperly suited.

During the multi-political or politicized MP recall cases, two structural developments, dealing with the amendment of the Constitution, came to the fore. Both had their origin in constitutionalism and various understandings of constitutional principles that limit governmental excesses. One concerned the passage of a constitutional amendment without following proper procedures in the National Assembly and Senate, and the other pertained to the permissibility or otherwise of constitutional amendments that violate other constitutional provisions.

For the avoidance doubt, the National Assembly and Senate are part of the legislature together with the President of the Republic, as contemplated by the Constitution. Parliament goes through many if not six stages until the last reading of the constitutional Bill. The President then signs the Bill into an Act of Parliament or law. Section 332 of the Constitution serves as the mini-dictionary on various categories of rules and laws that are regarded as such in Zimbabwe.

There is need to also set the record straight that the National Assembly and the Senate are not arranged in inferior or superior format. The National Assembly isn’t a lower house and the Senate isn’t an upper house. Such terms are not part of Zimbabwe’s constitutional system as they’re not in the Constitution. The Speaker is the leader of Parliament.

The two developments alluded to above converged in the emergence of strategic impact litigation and in the remarkable fusion of parliamentary creativity and active citizenry’s innovation on strategic impact litigation. The first was done by two parliamentarians and culminated in the Concourt’s directive that Parliament was supposed to follow the procedures relating to the National Assembly and Senate when dealing with constitutional amendments.

The acceptance of the court’s directives gave legitimacy to the notion of judicial independence and also demonstrated how the doctrine of separation of powers was respected by the three branches of Zimbabwe’s government. This saw the coming into effect of Constitutional Amendment No. 2 Act which extended the ages of judges of the Supreme Court and Concourt to 75 after reaching the age of their judicial tenure, which is 70. Judges of the High Court didn’t benefit from the age extension (not tenure extension). Other significant benefits include the retention of the Zimbabwe Human Rights Commission’s (ZHRC) dual roles as the public protector and national human rights institution.

This is a significant progress for democracy since those who are aggrieved do not have to spend time going to the ZHRC to determine the nature of the human right violation or the public protector to get a remedy. What is left is for Parliament to ensure that the ZHRC Act is amended to give the ZHRC mandate to act as a public protector. There’s also need to make sure s 210 of the Constitution is fully implemented by promulgating a law that provides for an effective and independent mechanism for receiving and investigating complaints from members of the public about the misconduct of members of security services.

The law will also play a huge role in remedying any harm caused by such conduct. While I strongly supported the implementation of section 210 of the Constitution by way of amending the ZHRC Act to give the ZHRC tri-zonal fusion human rights, public protection and independent complaints roles, I understand there is a Bill which establishes an independent Commission in this regard. The ZHRC has been consistent in its work in protecting rights as contemplated by its constitutional, legal and institutional mandates. In most cases, it has buttressed its reports by empirical evidence, including on matters such as politicization of food aid, public protests and population displacements.

If Parliament’s laws on independent complaint mechanism doesn’t receive an adverse report, academics, civil society and others non-state institutions can also build models on security service to civil relations engagements. Zimbabwe lacks a model that deals with how fears and realities of securitization of society can be properly canvassed through the utilization of platforms such as civil relations liaison offices (CRLO) in the Zimbabwe Republic Police and civilian-military relations (CMR) and others.

These institutional structures can be utilized by citizen voices such as women organizations, community-based organizations (CBOs), children organizations, faith-based organizations, civil society organizations and others to ensure the security institutions conduct themselves in ways contemplated by their constitutional and legislative mandates. Fundamentally, security institutions that are laid out in section 207 of the Constitution must conduct themselves in ways laid out in section 208 of the Constitution. Specifically, the model to be built must ensure that members of the security services must act in accordance with the Constitution and Zimbabwe’s laws.

They must also not act in a partisan manner; further interests of any political party or cause; prejudice lawful interests of any political party or cause; or violate the fundamental rights and freedoms of any person. To avoid securitization of state or society, the envisaged commission must be established to ensure that it can effectively deal with instances where members of the security services are employed or engaged as active members or office bearers of political parties or organizations. This should also speak to the prohibition of serving members of security to be employed or engaged in civilian institutions except in periods of public emergency.

The demand for constitutionalism

With the revival of strategic impact litigation, demand for constitutionalism or limited government was witnessed in Kika v Minister of Justice and Others, 2021. The case provided, among other things, how cases can deal with constitutional cases on an urgent basis; how the High Court is part of the superior courts that can regulate their own processes in terms of section 176 of the Constitution; how judges may dismiss applications to have them recuse themselves if the reasons are unmeritorious; and the question of joinder or non-joinder of parties to constitutional cases. Fundamentally, the Kika case also bear on the impact of judicial activism in interpreting constitutional provisions such as section 186 as introduced by Constitutional Amendment Non. 2 OF 2021 as read with section 328 of the Constitution.

The High Court found that the Constitution is interpreted holistically, as a living instrument and in line with the manner in which the second amendment was made. The High Court and litigants dealt with the question of two-tier extension of tenure of a Constitutional Court under the 15-year required tenure as ConCourt judge or because of the age of the judge. That approach didn’t deal with the arbitrariness of age limits as they relate to mandatory retirement of judges. This would’ve been important in showing how Zimbabwe’s constitutionalism protects judges as appointed public officials. This would’ve clarified whether appointed judges in Zimbabwe can assert protection in the non-discriminatory clauses in section 56 of the Constitution. 

Sharon Hofifi

Sharon Hofifi is a constitutional lawyer and transformative justice practitioner. He is contactable at [email protected]