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.
By Sharon Hofisi
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 normativised 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 2013 Constitution, 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 to the need to place constitutional restraint 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 in court in Mawarire v Mugabe and Others, when he liberalised 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 in 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 on Constitutional matters.
Zim’s avoidance doctrine
The ConCourt 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 “weaponised” 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 Justice minister 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 Lands minister had a significant bearing on Zimbabwe’s position 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 can interpret Zimbabwe’s investment climate.