Section 210 of the Constitution states:
“An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”
In 2015 Veritas filed an application in the Constitutional Court on behalf of two named applicants, seeking an order that would compel the Government to Gazette a Bill for the Act envisaged by section 210 within 45 days from the date of the order. Veritas engaged Mr Tendai Biti, a senior lawyer and noted human rights defender, to represent the applicants.
Yesterday, some four and a half years after hearing the application, the Constitutional Court granted the order sought and gave the Government 45 days within which to Gazette the necessary Bill. The Court’s judgment is Chironga & Mahiya v Minister of Justice, Legal and Parliamentary Affairs & Others (CCZ14/2020). It can be accessed on the Veritas website.
In this Court Watch we shall analyse the Court’s reasons for granting the order.
The Constitutional Court’s Reasons
The Court began by making three important points:
The need to control the exercise of public power:
The rule of law and supremacy of the Constitution are core founding values of our constitutional democracy. Hence mechanisms to oversee how public power and State authority are exercised must be strengthened. Where the Constitution mandates that such mechanisms be put in place [as it does in section 210] this must be done within a reasonable time in order to actualise the Constitution as a living document.
Nature of constitutional litigation:
Litigation to compel observance of the Constitution may incidentally entail the vindication of private rights, but, over and above that, it seeks to entrench legality and deepen the constitutional order to the benefit of the broader public. Hence the court may need to decide such cases even if they are brought by parties who lack legal standing to do so.
Attitude of parties to constitutional litigation:
Parties must remember that the purpose of constitutional litigation is to uphold constitutional legality; they should not adopt the “winner takes all” attitude appropriate to ordinary civil litigation.
Before dealing with the main issues in the case, the Court dealt with preliminary matters:
Defects in applicants’ affidavits
There were defects in the applicants’ affidavits which resulted in the second applicant’s case not being considered. The Court, however, said it should be slow to dismiss the application because of the defects, since the Constitutional Court, as the apex court in constitutional matters, was obliged to see that constitutional obligations were fulfilled.
Locus standi of applicant
The Court ruled that the first applicant had a right under section 167(5) of the Constitution to bring the case before the Constitutional Court as he was a citizen and the case was a constitutional case as defined in section 332 of the Constitution, and it was in the interests of justice for him to seek to uphold the Constitution by compelling the realisation of a constitutionally created obligation.
Having disposed of the preliminary issues, the Court then turned to the main issues in the case, which it identified as follows:
Was the delay in enacting a law under section 210 reasonable?
Section 210 does not specify a time-limit for the enactment of a law establishing a complaints mechanism, but section 324 of the Constitution requires all constitutional obligations to be performed diligently and without undue delay ‒ and this envisaged reasonable and responsive decision making.
When the application was filed in 2015, a period of just over two years had passed since the Constitution came into force. But since then more than seven years had elapsed and still no legislation had been enacted to implement section 210. This exceeded the reasonable time within which the Government should have discharged its constitutional obligation.
Did the applicant meet the requirements for a mandamus?
The Court held that the applicant met the requirements for a mandamus, i.e. a court order directing someone [in this case the Government] to do something:
- He had a right under section 327(5) of the Constitution to enforce compliance with section 210; his right also arose directly through section 210 itself.
- The Government’s delay in implementing section 210 of the Constitution caused the applicant injury, and the purpose of the order was to curtail further delay and further injury.
- There was no other remedy affording the applicant the same protection.
- As a result, the Court declared that the respondents [the Ministers of Justice, Home Affairs and Defence, and the Government of Zimbabwe] were in breach of their obligations under section 210 of the Constitution. It ordered them to Gazette the Bill envisaged in section 210 within 45 days from the date of the order, i.e. by the 9th November 2020.
The Court’s decision, though welcome, took more than four years to come. This inordinate delay cannot be blamed on the parties, and it has meant that serious allegations against the security services ‒ for example the killings of August 2018 ‒ have not been investigated by an impartial body set up under section 210 of the Constitution. The delay, in other words, has prejudiced not just the applicants but the people of Zimbabwe.
In its judgment, the Court said:
“The Constitution is the conscience of the nation and the courts are its guardians or custodians. ….. On this Court’s shoulder rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised and protected.”
It is devoutly to be hoped that our courts will live up to this.