Handbook on Constitutional and Electoral Litigation in Zimbabwe

Introduction

This Handbook on Constitutional & Electoral Litigation in Zimbabwe would dismally fail to accomplish its purpose if it falls only in the hands of judges, lawyers, teachers of the law and their law students, but not in the hands of those to whom the Constitution of Zimbabwe (Amendment Act No. 20) ultimately belongs –the public.

For this reason, it has been written in the most accommodative language to ensure that it is stirred away from legalese jargon and is useful and friendly to its users notwithstanding their profile. The other reason is the constitutional philosophy that underpins it; that the enforcement of the constitution through constitutional litigation seeks to redeem violations of the Constitution, and this is a matter of public interest. This is because the Constitution is the vehicle through which any community could attain a democratic society. Accordingly, any infringement of constitutional provisions undermines this common project hence the public has interest in redeeming it in a manner that guarantees non-recurrence.

This Handbook should be understood as foundational in nature. Much as it has delved into matters related to constitutional litigation with commendable depth, it only provides a base upon which a more detailed publication will be developed. This publication represents the beginning of a sequel of constitutional texts; one on constitutional litigation especially tackling specialized proceedings such as constitutional referrals, and state of public emergency. The succeeding publication will further explore the specialized process of prosecuting electoral disputes locating this process in comparative constitutionalism, foreign practice and adherence to international standards.

What is constitutional adjudication?

This Manual seeks to deepen the discussion on the meaning of constitutional litigation. Suffice to state that it is the sum of those legal proceedings concerning themselves with adjudication of constitutional issues or questions. In section 332 of the Constitution a constitutional matter is defined as ‘a matter in which there is an issue involving the interpretation, protection and enforcement of this Constitution.’ In other words, whenever a court finds itself having to interpret, protect or enforce the Constitution, such proceedings qualify as constitutional adjudication.

This Manual applies to these proceedings, which proceedings deal with a ‘higher law’, meaning the law of the Constitution as the supreme and fundamental norms in the order of legal principles. It is in fact the impugning of constitutional provisions in legal proceedings that distinguish constitutional and common law litigation, among other factors which separate these two forms of litigation.

Purpose of the publication

Constitutional litigation has a rich history in the country. In spite of a restrictive approach to locus standi in the Lancaster House Constitution, the Declaration of Rights continued to be largely litigated before national courts at the instance of individuals, corporate bodies as well as non-state litigators commonly referred to as civil society acting in the public interest.

The authors of this Manual have taken the view that with an expanded or benevolent approach to standing in the 2013 Constitution, more attempts to enforce the Constitution will be observed hence the need for a quick reference guide to both practitioners taking their very first instructions on constitutional litigation and seasoned ones finding themselves having to contend with a radically changed constitutional framework in the country.

With similar gravity, the Manual is intended for use by state counsels. A point is made somewhere in this Manual that the process of defending constitutional applications is an exercise by state counsels of public power. In fact, it is proof of fulfilling a constitutional mandate. Constitutional litigation holds the government accountable. To that end, state counsels are required to exude unquestionable ethical conduct, capacity and ability to converse with constitutional issues and are saddled with the duty to place before courts ‘relevant evidence’ especially when proving or seeking to justify limitations placed on the enjoyment of rights and freedoms in the Declaration of Rights.

Therefore, the purpose of this publication and its succeeding editions is to discuss the practice and procedure of bringing cases of a constitutional nature before the courts of law. The constitutional matters are of a general nature transcending from the Declaration of Rights to other provisions in the Constitution.

The Manual, as alluded to earlier on, serves as a quick reference to those players involved in the litigation process and those with the desire to follow and understand constitutional proceedings. Instead of generalizing constitutional litigation as it does in Part I, the Handbook goes on to demonstrate the practice and procedure of constitutional litigation by focusing exclusively on electoral dispute resolution (EDR), which by nature are constitutional litigation processes.

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The Law Society of Zimbabwe (LSZ) has been implementing a three year project with support from the European Union (EU) from 2017- 2020.

This publication was produced with the financial support of the European Union. Its contents are the sole responsibility of the Law Society of Zimbabwe and do not necessarily reflect the views of the European Union.

Source: Law Society of Zimbabwe