No rest for Constitutional Court judges

THE Constitutional Court will hear a consolidated application for an extension of the election date on Thursday, the ninth case the bench will adjudicate on since its formation last month.

THE Constitutional Court will hear a consolidated application for an extension of the election date on Thursday, the ninth case the bench will adjudicate on since its formation last month.


The court’s speed in handling cases has raised hopes that the wheels of justice could finally move faster in a country, where it can take years for cases to be decided.

Zimbabwe’s judiciary system has been accused of taking longer to dispense rulings and in the process short-changing applicants, since justice delayed is considered justice denied. Many of the cases involved human rights matters.

Since it began work following the signing into law of the new Constitution on May 22, over 60 applications have been filed with the court. It has reserved judgements in two cases, ruled in favour of Mutumwa Mawere in his citizenship fight with the Registrar-General and has also dismissed two cases, raising hopes that the wheel of justice are moving in the fast lane.

Analysts however, caution that this does not reflect that the lower courts will move with speed, replicating the Constitutional Court.

Constitutional expert Greg Linnington said the cases have been heard earlier, as the applications were urgent and related to elections which President Robert Mugabe proclaimed should be held on July 31.

The congested programmes have also meant that the judges, who also sit on the Supreme Court bench, are kept on their toes raising fears this may have an effect on their work in the other court.

According to paragraph 18 the Sixth Schedule to the new Constitution, for the next seven years the judges of the Supreme Court will double as judges of the Constitutional Court. Only after that will the entirely separate Constitutional Court envisaged by the new Constitution come into existence.

As such, constitutional cases will be heard by Supreme Court judges with nine judges instead of five, as was in the old Constitution.

The bench will hear not only new cases but all pending constitutional cases lodged with the Supreme Court before May 22, in which that court had not yet heard argument from the parties.

The bench has nine judges — Chief Justice Godfrey Chidyausiku and his deputy Luke Malaba, Judge President George Chiweshe, Justice Antoinette Guvava, Justice Paddington Garwe, Justice Anne-Marie Gowora, Justice Vernanda Ziyambi, Justice Bharat Patel and Justice Ben Hlatshwayo.

Analysts say the Constitutional Court will be stretched if the recent applications are anything to go by.

On Thursday, the judges will hear a consolidated application by Prime Minister Morgan Tsvangirai, Justice and Legal Affairs minister Patrick Chinamasa, Nixon Nyikadzino and Mariah Phiri for an extension of the election date from July 31.

“With the broadness of the Bill of Rights, they are going to be stretched. There will be a number of cases coming up as people who were oppressed will use the opportunity to assert their rights,” said a Harare-based lawyer who requested anonymity.

“We have a Constitutional Court for one month and there are more than 30 cases and this means we are going to see serious activities in court.”

The lawyer said the cases were a test on the bench’s credibility and “have to show whether or not they will come out with their fingers unscathed”.

He said the bench has to unshackle itself from the perception that its members, by virtue of doubling as Supreme Court judges, had in the past responded to the needs of one political party.

“It is their responsibility to make sure that they are seen as an independent and an impartial bench, whose duty is to interpret the law,” the lawyer said.

Linnington said he preferred the South African model which has separate judges for the Constitutional and Supreme courts to the Zimbabwean scenario.

“It’s a pity we don’t have that in Zimbabwe, that would have made the case pretty good,” Linnington said.

But University of Zimbabwe law lecturer Lovemore Madhuku said Zimbabwe was a small country and did not have a busy court calendar.

He said since the court was supposed to run for seven years, it would be possible to see at the end of its tenure whether it was necessary to have separate judges, adding that “it costs money to have separate judges.”