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UPDATE: The Law in Zimbabwe

By Otto Saki and Tatenda Chiware

Update by Jimcall Pfumorodze and Emma Chitsove

 

Jimcall Pfumorodze is a Lecturer in the Department of Law, University of Botswana, Botswana. He holds a Bachelor of Laws (Hons) from the University of Zimbabwe, a Master of Laws from the University of Western Cape jointly with the University of Amsterdam and is currently reading for his Doctor of Laws with the University of Pretoria, South Africa. Emma Chitsove is legal consultant and she holds a Bachelor of Laws (Hons) from Midlands State University, Zimbabwe.

 

Otto Saki is a Projects lawyer responsible for Human Rights defenders and International litigation projects with Zimbabwe Lawyers for Human Rights. He holds a Bachelor of Laws (Hons) from the University of Zimbabwe. He has been a fellow with the Institute for Human Rights and Development in Africa (Gambia) He has also won the international Reebok Human Rights Award on the 6th of June 2006. Tatenda Chiware is a law student at the University of Zimbabwe. Currently he is a student intern with Zimbabwe Lawyers for Human Rights. He has held the position of Secretary for Legal and Academic affairs at the University of Zimbabwe and is a Commissioner with the Catholic Commission for Peace and Justice.

 

 

Published July 2011
See the Archive Version!

 

Table of Contents

Introduction

Historical Overview

Sources of Zimbabwean Law

The Legislature

Precedent / Case law / Court Decisions

Customary Law

Common Law

Authoritative texts

Constitution of Zimbabwe

The Justice System in Zimbabwe

The Constitution and the Judiciary

Independence of the Judiciary

Appointment of judges – the Judicial Service Commission

Judicial tenure and remuneration

Removal of judge from office

The Supreme Court

The High Court

The Administrative Court

Magistrates’ Court

The System for the Administration of the Courts

The Office of the Attorney-General and Public Prosecutor

The Legal Profession

Remuneration of Judicial Officers

Security of Records

Amelioration of the Shortage of Manpower and Ill-qualified Personnel

Upgrading of Inadequate Resources

Specialist / Specialized Courts in Zimbabwe

Advantages of Specialist Courts

Disadvantages of Specialist Courts

Examples of Specialist Courts

The Labour Court- Labour Court Act No. 17 of 2004

The Administrative Court

Administrative court as the water court

Special Court for Income Tax Appeals

Fiscal Appeal Court

Local Courts on Customary Law

Small Claims Court

The Electoral Court and the Electoral Commission

Maintenance Court

Children’s Court

Legal aid

Civil Court Legal Aid

Criminal Court Legal Aid

Legal Aid by Private Institutions

International Law and Its Application in Zimbabwe

Law Reports

Bulletin of Zimbabwean Law

Zimbabwe Human Rights Bulletin

Government Gazettes

Codes

Law Schools

Zimbabwe Lawyers for Human Rights

The Law Society                of Zimbabwe

Legal Resources Foundation

 

Introduction

Zimbabwe has a hybrid or a plural legal system in the sense that the law currently in force was adopted from foreign jurisdictions and imposed into the country by settlers during the colonial era.  Zimbabwe’s law still exposes residual traits of the process of transplantation of historical disempowerment and colonial takeover after several years of independence.

 

Zimbabwe’s Legal system consists of the Common law (non-statutory or unwritten Anglo Roman Dutch Law) Legislation Case Law (Precedent) and Customary Law.  With the exception of Criminal Law, which has recently been reformed and codified [[1]], Zimbabwe’s law is not codified.  The Constitution of Zimbabwe is the Supreme Law of the country and it is the parent act of any other Legislation [[2]].

 

Historical Overview [[3]]

The colonial and legal history of Zimbabwe, although unique and independent, is interconnected and interrelated to the history of South Africa’s legal developments and colonial developments.

 

Prior to the arrival of the first British settlers in 1890, the area now known as Zimbabwe was occupied exclusively by the Shona and Ndebele peoples whose chiefs exercised Sovereign powers over them.  The Shona people occupied the northern part of the country known as Mashonaland, while the Ndebele people occupied the southern part known as Matebeleland. Lobengula, an Ndebele chief, was the most powerful chief at the time of British occupation.  The law in force before British occupation was the traditional or customary law of the tribes living in Zimbabwe at that time.  The traditional laws were written and were not uniform throughout the country.  Chiefs and their kraal heads administered the law with the chiefs being the judges who had the final say in the settlement of disputes.  Chiefs have the power to issue royal decrees and these would become law.  Traditional laws were enforced by the king or chiefs warriors, or indunas.

 

29 October 1889 marked the commencement of formal colonial takeover for Zimbabwe.  A company known as the British South Africa Company (BSAC) was given a Charter on 29 October 1889 by the British government.  The company was the brainchild of Cecil John Rhodes, a British businessman and politician.  The colony of Zimbabwe was renamed Rhodesia, after Cecil Rhodes.  The charter was a semi-permanent instrument of government until such time as nay settlers could take over the administration of the colony.  According to the charter, the British South Africa Company was to administer the colony for at least twenty-five years before the contract was tampered with.

 

In itself, the charter was the first legal document, which outlined how Rhodesia was to be governed and administered.  It also defined legislative and judicial issues.  Article 10 of the Charter decreed thus:

 

“…the company shall to the best of its ability preserve peace and order in such manners as it shall consider necessary and may with that object make ordinances to be approved by [the British] Secretary of State, mat establish and maintain a force of Police”.

 

It is thus patently clear from the provisions of Article 10, that the company had now been vested with legislative, administrative and judicial powers and this was the beginning of formal law and its imposition upon a sovereign African Natives.

 

On the 12th of September 1890, acting on the strength of the Charter, a group of British Settlers arrived at what is now Harare in Mashonaland and hoisted the Union Jack (British flag), a sign of effective occupation.  The place was then named Fort Salisbury.  A town was created and a Police Force set up.  The occupation was secured through dishonest and fraudulent means, given that the black natives were oppressed to British occupation of their territory.  On 9 May 1891, the British government brought into being the “South Africa British Protectorate. The idea was to secure the territory from occupation by the South African Republic. However, the company remained in control of the territory.

 

Given the deceitful and fraudulent means of securing the territory used by Rhodes and his company, tension began to mount between Lobengula and the company.  A war broke out in 1893 in which the natives, poorly armed, were defeated.  This war was to be known as the “Anglo-Matebeleland war of dispossession”.

 

In 1894, a High court was set up, from which appeals would proceed to the Cape Supreme Court.  It is thus common knowledge that the laws administered in the colony of Rhodesia were of foreign origin – mainly British (English Law) and Roman – Dutch Law.

 

A landmark occurrence took place in on 20 October 1898.  The South Rhodesia Order in Council was enacted.  It provided for the appointment of an Administrator and a Legislative Council. The Legislative Council had the power to enact laws for the “peace” order and good government of Southern Rhodesia vested in the British Crown and not in the Company.  All cases tried in the courts then bore the name of the Gown or the Rex. In October 1923, Southern Rhodesia was formally transformed into a British Colony by the Southern Rhodesia (Annexation) Order in Council of 30 July 1923. This influenced the law to be administered in that it led to the adoption of English legal principles in certain instances.

 

A Constitution then came into being in 1923. The Constitution established a legislative assembly consisting of thirty elected representatives of electoral districts. It also provided for the election of a Speaker and a Deputy speaker of the Assembly.  Such a development marked the commencement of formal parliament a model which Zimbabwe still follows today. The 1923 Constitution was later revised in 1961; the 1961 constitution conferred more powers of self-government on the territory of Southern Rhodesia, because the territory was still a British Protectorate. It also took into account the views of the African nationalists who sought to advance the political rights and interests of Africans.

 

On the 11th of November 1965, Ian Smith declared a Unilateral Declaration of Independence (UDI), which sought to free the territory from the direct British control and dominion and establish a system of total self-governance. The Queen dismissed Ian Smith and his Ministers for insubordination and declared the declaration illegal, and urged all citizens, the Judiciary, the armed services the police and the public service to carry on with their normal tasks.

In 1969, a new Republican Constitution was adopted. It introduced a Non-Executive Presidency, a bicameral legislature, consisting of a house of Assembly and a Senate.  The Senate was the upper house, constituting of twenty-three Senators - ten were Europeans, a further ten were African Chiefs and the final three were persons appointed by the President.  The Senate was abolished later in independent Zimbabwe in 1987 and later recently re-introduced in September 2005.  This serves to highlight how the law in Zimbabwe has been etched and shaped by the country’s Colonial history.

 

The House of Assembly of 1969 consisted of sixty-six members.  Fifty were Europeans, the other sixteen were Africans.  This reservation of seats for Europeans who were the minority was to say the least oppressive and it gave rise to the Revolutionary war for independence.

 

As a result of the continued Political impasse, numerous efforts were made to solve the political crisis. Africans continued waging a war in demand for majority rule and total independence. In 1978, the Regime partially relented and entered talks with African national parties. A new Constitution was agreed on (the 1979 Constitution Elections were held and the U.A.N.C [[4]] won - Bishop Abel Muzorewa became Prime Minister).  Southern Rhodesia for that brief period came to be known as Zimbabwe Rhodesia.  Political turmoil continued embattled and this gave rise to the Lancaster House Constitutional Conference [[5]] in 1979, which sought majority rule for Africans and a total grant of Independence to Africans.  Soon after the Constitutional Conference, an election was held in 1980 in which Robert Mugabe’s ZANU PF won. On 18 April 1980, Prince Charles formally conferred independence upon Zimbabwe; the new constitution then came into effect on the same day.

 

The Lancaster House Constitution of 1979 is still the Supreme Law of Zimbabwe today, twenty-six years after independence, itself being the parent Act to numerous colonial era Legislation.  It is thus clear that Zimbabwe’s laws are the pre-historic remnants of the colonial era.

 

Sources of Zimbabwean Law

With the exception of Criminal Law [[6]], Zimbabwe’s law is mainly uncodified. There is no one single source of law in Zimbabwe. The law is derived from various sources, has various sources, and has various origins.  The Criminal Law of Zimbabwe was codified and the Criminal Law [Codification and Reform] Act came into effect on the 1st of July 2006.  Five years down the line, it can be rightfully summed up to say the Code is here to stay.  Of interest is that, this Code criminalises activities like the deliberate infection of another person with a sexually transmitted disease and HIV. Sexual-transmitted diseases are defined to include diseases like syphilis, gonorrhoea, herpes, and all other forms of sexually transmitted diseases. In relation to infection any person with a sexually transmitted disease, the law in s78 reads:

         (2)  Any person who¾

                                       (a)     knowing that he or she is suffering from a sexually-transmitted disease; or

                                       (b)     realising that there is a real risk or possibility that he or she is suffering from a sexually transmitted disease;

  intentionally infects any other person with the disease, or does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with the disease, shall be guilty of deliberately infecting that other person with a sexually-transmitted disease and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding five years or both.

(3)  If it is proved in a prosecution for spreading a sexually-transmitted disease that the person charged was suffering from a sexually-transmitted disease at the time of the crime, it shall be presumed, unless the contrary is proved, that he or she knew or realised that there was a real risk or possibility that he or she was suffering from it.

(4)  It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—

                                       (a)     knew that the accused was suffering from a sexually-transmitted disease; and

                                       (b)     consented to the act in question, appreciating the nature of the sexually transmitted disease and the possibility of becoming infected with it.

In relation to transmission of HIV, s79 reads:

         79   Deliberate transmission of HIV

(1)  Any person who¾

                                       (a)     knowing that he or she is infected with HIV; or

                                       (b)     realising that there is a real risk or possibility that he or she is infected with HIV;

  intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.

(2)  It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—

                                       (a)     knew that the accused was infected with HIV; and

                                       (b)     consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.

This is one kind of law, meant to curb the deliberate spreading of STIs and HIV by one person to another which is difficult to enforce. This is because it is difficult to prove when the person contracted the virus and whether he/she got it from the accused person, just as it is difficult to prove marital rape.  At the time of writing, the writer was not aware of any case that was bought before the Courts, based on these provisions.

 

The following are sources of Zimbabwean law:

  • Legislation
  • Precedent / Case law / Court Decisions
  • Customary Law
  • Common Law
  • Authoritative texts

The Legislature (Bicameral System)

Legislation refers to the law validly enacted by the legislative authority of Zimbabwe and assented to by the President of Zimbabwe.  In Zimbabwe, the legislative authority of Zimbabwe vests in the President and parliament of Zimbabwe which is the Primary Legislation states as follows:

 

32 Legislative Authority

1. The Legislative authority of Zimbabwe shall vest in the Legislative which shall consist of the President and Parliament.

2. The provisions of subsection (1) shall not be construed as preventing the legislature from conferring legislative functions on any person or authority.

 

The Legislature of Zimbabwe can confer powers on any authority to create binding laws.  Currently the Legislature of Zimbabwe is a bicameral system consisting of a Lower House (Parliament) and an upper House (Senate).  Legislation brought through parliament has to be scrutinized by the Senate before it goes for assent to the executive President.  The senate was recently ushered in through Constitutional Amendment Number 17 of 2005. It appears that currently the purpose is to slow down undesirable proposed legislation or to frustrate it if it comes from members of the opposition. At the same time it expedites legislation brought in by members of the ruling party.

 

The Senate had been abolished by the ruling ZANU PF party in 1987 [[7]] on the pretext that it was expensive and that it slowed down the legislative process.  Surprisingly it was reintroduced in 2005.

 

The method of passing legislation is entrenched in Section 51(1) of the Constitution.  All legislation in Zimbabwe is styled Acts of Parliament or Statutes. Other authorities such as the President, acting unilaterally, and Ministries can pass legislation known as Statutory Instruments, or Subsidiary Legislation. Subsidiary or Subordinate Legislation consists of the following:

 

  • Regulations made by a Minister for purposes specified in the Enabling Act of Parliament.
  • Byelaws created by specified local authorities such as Urban or Rural Councils, acting under powers given to them by the relevant Acts of Parliament.
  • Proclamations issued by the President for purposes such as dissolving Parliament.
  • Rules of the superior Courts to facilitate procedure and their operations.
  • Regulations made by the President under the Presidential Powers Temporary Measures Act.

Case Law / Precedent

Precedent refers to past decisions of the superior courts.  Precedents establish the legal position of cases tried in the courts and establish the reasoning for decisions made by the judges in each particular case.  Conversely, precedents therefore guide the courts in making future decisions in similar cases brought before them. Zimbabwe relied on precedents of South African origin or those of any jurisdiction in which English law and Roman-Dutch law is applied and the precedents of Rhodesia.

 

The maxim Stare Decisi at non-queta movere best sums up the use of case law in Zimbabwe.  The maxim means to stand by old decisions and not disturb settled points. Supreme Court decisions in Zimbabwe are binding on all interior courts. High court ruling also binds the lower courts such as the Magistrates courts.

 

The advantage of Precedents is that they ensure informality and consistency in the application of the law and they maintain certainty and equality of the law in similar circumstances.

Customary Law

The customary law of Zimbabwe is generally unwritten.  Customary law refers to the fixed customs and practices of the tribes of Zimbabwe which were in practice since time immemorial.  The customs must be certain, reasonable and must had attained the recognition of formal law. For example the criminalization of incest, in the sexual offences Act and the Criminal Law (Codification and Reform) Act is the recognition of customary law which prohibits incest or sexual relationship with certain degrees of blood affinity.

 

The constitution entrenches the recognition of African Customary Law. Section 89 of the Constitution of Zimbabwe in imposing the law to be administered, sets up African customary law as part of the law to be administered[[8]].  Other Legislation, such as the: Customary Marriages Act; Administration of Deceased Estates Act and Customary Law and Local Courts Act seeks to either to recognize customary law or provides for its enforcement in certain areas such as inheritance.

 

The Customary Law of Zimbabwe is limited in scope in its application. [[9]] It has no criminal Jurisdiction whatsoever and it governs some areas of Marriage, Inheritance and Guardianship only.

Common Law

Common law of Zimbabwe refers to the unwritten law or non- statutory law. Common law excludes the African customary Law. The common law of Zimbabwe is primarily the Roman-Dutch Law as applied at the Cape of Good Hope on the 10th of June 1891 as per the provisions of Section 89 of the Constitution of Zimbabwe.  The Common Law was transplanted from the Cape and imposed to Zimbabwe.  However, the common law at the Cape in 1891 had been heavily influenced by English Law, hence the common law of Zimbabwe must be said to be Anglo-Roman-Dutch Law.

 

A recent development in Zimbabwe ousts the application of Common Law. The recent Codification of Zimbabwe’s Criminal Law through the Criminal Law (Codification and Reform) Act jeopardizes the application of Common Criminal law. Section 3 of the Act states unequivocally that Roman-Dutch Criminal Law no longer to apply.

Authoritative Texts

One cannot safely assert that authoritative text from acclaimed legal authors form part of Zimbabwe’s law.  However textbooks on law have persuasive authority upon which reliance can be had in making judicial decisions.  The few authoritative legal authors in Zimbabwe rely on old Roman Dutch writers. They mainly write commentaries and guides to the law of Zimbabwe. Professor Geoff Feltoe has several Guides to the Laws of Zimbabwe which are widely used and referred to in litigation. His comments and assertions form persuasive grounds upon which cases can be decided.

Constitution of Zimbabwe

The constitution of Zimbabwe is the Supreme law of the land and any other law which is inconsistent with it is deemed void to the extent of that inconsistence [[10]]. Therefore Zimbabwe has Constitutional Supremacy instead of parliamentary Supremacy.

 

The current constitution of Zimbabwe is the result of a settlement agreement done at Lancaster House in England in the year 1979.  It sets out the State Structure, the Bill of Rights the Judiciary the Legislature and other administrative organs such as the public service commission. Currently a Constitutional Committee (COPAC) has been established to facilitate the constitutional making process, whereby Zimbabwe will see itself having a home grown Constitution after 31 years from independence. At the time of writing the rappouters had finished the consultations and information gathering from the Zimbabweans and were consolidating this information for debate in the Parliament.

 

The constitution is the parent Act of every other Legislation.  Therefore all Acts of parliament subordinate to it must be intra vires the constitution or within the confines of constitutionality.

 

At this point, a chapter by chapter analysis of the constitution is prescribed.

 

Chapters I and II - The Republic and Citizenship

Chapter 1 defines the Republic of Zimbabwe and states that there shall be a public seal for the Republic which shall be kept by the President. It lastly entrenches that the Constitution is the Supreme law.  Chapter II deals with Citizenship and maintains that citizenship in Zimbabwe is either by birth registration or by descent Dual Citizenship of any sort has been formally abolished in Zimbabwe.

How citizenship can be obtained has been clarified and simplified by Constitutional Amendment No 19 of 2008. In relation to citizenship by birth, the new provision provides that a one can attain citizenship if either one of his/her parents or grandparents were a Zimbabwean citizen by birth or descent. The same applies in relation to citizenship by descent. A closer look at the new provisions is that they are just a simplified version of the old position with exception of attainment of citizenship through grandparents.

There is material departure from the repealed position as regards citizenship by registration. The new provision provides that any person can, who has been voluntarily and ordinarily residing in Zimbabwe for at least ten years, or for a shorter period fixed in an Act of Parliament, may apply to become a Zimbabwean citizen by registration. [[11]] Also  a person who is married to a Zimbabwean citizen and who has been ordinarily residing in Zimbabwe for at least five years since the marriage is entitled, on application, to become a Zimbabwean citizen by registration. Prior to this, the Constitution catered for citizenship through registration for married women and adopted children only and was not broad enough to cover situations of Zimbabwean women marrying non-citizens.

 

Regardless of these provisions being clear and progressive, in practice, where a person have a Zimbabwean identity document and Zimbabwean birth Certificate depicting that the holder is a Zimbabwean, that person cannot be issued with a Zimbabwean passport on the basis that he/she should renounce their citizenship first. This has made persons like farm workers, who are originally from Malawi but have regarded Zimbabwe as their permanent home, without passport. Their position is further worsened by the fact that most of them have since lost contact with their descents and they do not appear in the records of their country of origin. The Courts have tried without success to compel the Registrar’s Offices to issue passports to such persons.  

 

Chapter III - The Declaration of Rights

 

Zimbabwe’s Declaration of Rights protects the following rights:

 

*            Protection of the  right to life

Section 12

*            Protection of the  right to personal liberty

Section 13

*            Protection from slavery and forced labor

Section 14

*            Protection from inhuman treatment

Section 15

*            Protection from deprivation of property

Section 16

*            Protection form arbitrary search or entry

Section 17

*            Provisions to secure protection of law

Section 18

*            Protection of freedom of conscience

Section 19

*            Protection of freedom of expression

Section 20

*            Protection of freedom of assembly and association

Section 21

*            Protection of freedom of movement

Section 22

*            Protection from discrimination on the grounds of race, etc.

Section 23

*            Political rights

Section 23A

 

The Preamble to the Declaration of Rights commerce as follows;

 

Preamble

Whereas persons in Zimbabwe are entitled, subject to the provisions of this Constitution, to the fundamental rights and freedoms of the individual specified in this Chapter, and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations on that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the public interest or the rights and freedoms of other persons.

 

The Declaration of Rights has been an essential feature of the Zimbabwean Constitution since Independence.  However, the Declaration has been criticized for being too shallow in terms of the few rights it provides for. Since Independence the few rights enshrined have been amended with the purpose of protecting the state from liability arising from its regular and wanton human Rights abuses.  The Declaration omits second generation rights and third generation rights.  The derogation and limitations to rights are too excessive and in some instances taking away the rights totally. Zimbabwe is currently on record for its non-observance of fundamental rights with the state often using drastic measures and unorthodox means to curtail the rights of mankind.[[12]]

 

Zimbabwe has quite a substantial jurisprudence on human rights; however, the jurisprudence is except in a few exceptional cases not as desirable and developed as would be expected in a reasonable democratic society. Some of the decisions, instead of focusing on the promotion and protection of human rights, seek to shield arbitrary state actions in the guise of national interest. This is done in most cases by focusing on trivial technicalities of procedure instead of focusing on the long term human rights interests of the public. An example is the Associated Newspapers of Zimbabwe Case[[13]] where the dirty-hands doctrine was applied unreasonably and unjustifiably in a bid to deny A.N.Z. a newspaper publishing license.

 

Protection of citizens by the law is guaranteed in the constitution. Section 18 provides for the protection of the law and the right to a fair hearing within a reasonable time in both criminal proceedings and civil proceedings. This section conforms to provisions of international law. Every person who is charged with a criminal offence shall be presumed to be innocent until he has been proven or has pleaded guilty and shall be informed as soon as is reasonably practicable, in a language that he understands and in detail the nature of the offence charged and must be given adequate time for the preparation of his defense. The section also permits an accused to secure at his expense legal practitioners of his choice, and inter alia, to have access to records of court proceedings in respect of his trial.

 

Section 24 of the Bill Rights as enshrined in the constitution deals with enforcement of Bill of Rights. If any person alleges that the declaration of Rights has been, is being or is likely to be contravened in relation to him. In relation to a person who is detained, any other person can apply to Supreme Court on behalf of that particular detainee. Court officials of courts subordinates to the High Court can also refer allegations of contravention of the Bill of Rights to the High Court unless they feel in their opinion doing so would appear frivolous and vexatious.

 

The dilemma with the enforcement of protective provisions as entrenched in the Bill of Rights is the issue of locus-standi.  A person will not have locus standi under subsection (1) of section 24, except in respect of detained persons unless he is able to allege that a provision of the declaration of Rights has been or is being or is likely to be contravened in respect of him. This was held to be the case in United Parties v. Minister of Justice, Legal and Parliamentary Affairs and others [[14]]. The facts briefly are that, united parties, a political party, had made an application challenging the constitutionality of provisions in the Electoral Act which gave constituency Registrars; the power to deny registration to certain voters.  The Supreme Court held that the proviso in issue affected the rights and interests of ‘claimant’ and ‘voters’.  The political party was held not to have locus standi in judicio to challenge the Electoral Act.  Such reasoning has been criticized as fallacious in that it denies the opportunity for “public interest litigation”.

 

However, with the recent amendment to the Constitution, it has been aired that the enshrined rights can now be fully protected and realized. The Constitutional Amendment No. 19[[15]] through the insertion of Chapter XB, created four independent commissions namely: the Zimbabwe Media Commission; Zimbabwe Electoral Commission; Human Rights Commission and Anti-Corruption Commission. The composition and powers of each commission will be outlined herein[[16]].

1.     ZIMBABWE HUMAN RIGHTS COMMISSION

The Zimbabwe Human Rights Commission [ZHRC] was established by virtue of s100R of the Constitution. The ZHRC consist of a chairman and eight other members. The chairperson must be someone who has been qualified for at least five years to practise as a legal practitioner and is to be appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders. The other eight members, at least four of whom shall be women are appointed by the President from a list of sixteen nominees submitted by the Committee on Standing Rules and Orders. In terms of s100R (3), for a person to be appointed to ZHRC, he/she must have knowledge of and experience in the promotion of social justice or the protection of human rights and freedoms.

 

The functions of ZHRC are set forth in s100R (5) as inter alia promoting awareness of and respect for human rights and freedoms at all levels of society; promoting the development of human rights and freedoms; monitoring and assessing the observance of human rights in Zimbabwe; recommending to Parliament effective measures to promote human rights and freedoms; investigating allegations of human rights violation and assist the Government in preparing reports for submission to any regional or international body in line with an international treaty to which Zimbabwe is a party.

 

In exercising these functions, ZHRC should be empowered to in terms of s100R (8) of the Constitution        to conduct investigations on its own initiative or on receipt of complaints; to visit and inspect prisons, places of detention, refugee camps, and related facilities and places where mentally disordered or intellectually handicapped persons are detained in order to ascertain the conditions under which inmates are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places or facilities and to secure or provide appropriate redress for violations of human rights and for injustice.

 

At the time of writing, Zimbabwe Human Rights Bill that has been drafted by the Ministry of Justice and Legal Affairs, which seeks to provide for the operationalisation of ZHRC, was yet to be passed though the principles of the proposed bill were approved on the 6 July 2010.  

 

  1. Zimbabwe Electoral Commission

This Commission is established in terms of s100B of the Constitution. It is comprised of     a chairperson who is appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders and eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders.  A person who qualifies to be a chairperson of this Commission must be a judge or former judge of the Supreme Court or the High Court, or a person qualified for appointment as such a judge and at least four members of the Commission, apart from the chairperson, must be women. The following persons are disqualified from being appointed as Commissioners: Parliamentarians; public officers, other than a judge and members or employees of a statutory body, a Provincial council or a local authority by virtue of s100D. In the interests of independence and neutrality, members of this Commission are prohibited from becoming a member of any political party. [[17]

The functions and powers of this Commission are outlined in s100C and these includes the preparation for, conducting and supervision of all types of elections; supervision of the voters’ registration; designing, printing and distribution of ballot papers and determining the limits of boundaries of local authority wards, House of Assembly and Senatorial constituencies; conducting voter education and accreditation of observers of elections and referendums. The Commission is obliged to submit reports to the Parliament on the conduct of every presidential, parliamentary, provincial council and local authority election and every referendum.

The term of office of the Commissioners is six years and their appointment may be renewed for one further term only. However, they can be removed from their offices anytime before the expiration of six years by the President with the approval of Judicial Service Commission and the Committee on Standing Rules and Orders, if it is the chairperson and approval of the latter if it a just a member. The Commissioners may be removed on any of the following grounds: inability to exercise the functions of his or her office arising out of physical or mental incapacity; or for misconduct; or for incompetence; or if he or she becomes disqualified for appointment to the Commission. [[18]]

 

The effectiveness of this Commission will be measured this year, in the event that elections are conducted.

 

3.                    ZIMBABWE ANTI-CORRUPTION COMMISSION

The Zimbabwe Anti-Corruption Commission [hereinafter referred ZACC] is established by s100K of the Constitution. It should consist of at least four but not more than nine members, appointed by the President in consultation with the Committee on Standing Rules and Orders. Of the four to nine members, at least one of them must be entitled to practise as a legal practitioner; and the other must be entitled to practise as an auditor or public accountant in Zimbabwe; and at least one shall have had at least ten years’ experience in the investigation of crime. For persons to be appointed to the ZACC must be persons of integrity chosen for their knowledge of and experience in administration or the prosecution or investigation of crime or for their general suitability for appointment.

 

The ZACC exercises the following main functions: combating corruption, theft, misappropriation, abuse of power and other improprieties in the conduct of affairs in both the public and private sectors and making recommendations to the Government and to organisations in the private sector on measures to enhance integrity and accountability and to prevent improprieties. In exercising any of its functions, ZACC is entrusted with the power to conduct investigations and inquiries on its own initiative or on receipt of complaints; and to require assistance from members of the Police Force and other investigative agencies of the State; and through the Attorney-General, to secure the prosecution of persons guilty of corruption, theft, misappropriation, abuse of power and other improprieties.[[19]] This Commission is fully operational by virtue of the Anti Corruption Act [Chapter 9:22].

 

As regards its effectiveness, this Commission has been to a greater extent not been effective in curbing corruption. This is reflected by the fact that individuals arrested on corruption allegation most of them are small fishes accidentally caught in the net, bribing law offices and there has been less key figures arrested. Those key figures who have been arrested have either been arrested for political reasons, such as the arrest of Elton Mangoma, an MDC-T Minister for Energy whereas the likes of Ignatius Chombo, a ZANU PF, political heavyweight have been left scot-free in face of alleged land and property scandals.

 

  1. ZIMBABWE MEDIA COMMISSION

Section 100N of the Constitution establishes the Zimbabwe Media Commission [hereinafter ZMC]. This Commission succeeded the Media and Information Commission which was set up by the Access to Information and Protection of Privacy Act (AIPPA) [Chapter 10.20] in 2002 and fully operating. [[20]] ZMC consist of a chairperson and eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. For a person to qualify for appointment in ZMC, he/she must have knowledge of and experience in the press, print or electronic media, or broadcasting.

 

The functions of ZMC includes upholding and developing freedom of the press; promotion and enforcement of good practice and ethics in the press, print and electronic media, and broadcasting; ensuring that the people of Zimbabwe have equitable and wide access to information and ensuring  the equitable use and development of all indigenous languages spoken in Zimbabwe.[[21]] ZMC is empowered through AIIPA to conduct investigations and inquiries into any conduct or circumstance that appears to threaten the freedom of the press and the conduct of the press, print and electronic media, and broadcasting; and to initiate and/or institute disciplinary action against journalists and other persons employed in the press, print or electronic media, or broadcasting, who are found to have breached any law or any code of conduct applicable to them.

 

However, since its inception, his Commission together with the Zimbabwe Broadcast Authority has been seen as furthering the interests of the government and has been criticized for its failure to issue broadcasting licenses to private individuals. Of late, it has however been praised for relicensing ANC, a publishing house for the Daily Newspaper after its closure in 2004.

 

From the afore-going, it can be rightly said that the establishment of the four Commissions is a positive legal development though it is too early to measure the effectiveness of these commissions such as the Electoral and Human Rights Commissions. 

 

Chapter IV – The Executive

Chapter IV of the constitution defines the executive arm of the state. It states that there shall be a President who is Head of State, Head of Government and Commander-in-chief of the Defense Forces.  The President is the first citizen. A person qualifies for president if he is a citizen of Zimbabwe by birth or by descent, has attained the age of forty years, and is ordinarily resident in Zimbabwe.  The President is elected by voters registered on the common roll, and his term of office is six years.  There is no limit to the President’s terms of office, unlike in other jurisdictions like South Africa.

 

This arm has to a greater extent been affected by the 2008 Inter Party Political Agreement. The background to this Agreement is that the dawn of 2008 saw Zimbabwe holding harmonized elections. Initial it was just supposed to be Parliamentary elections but the President dissolved the Parliament before its term had expired and parliamentary elections were held together with the presidential elections. The Parliamentary elections of 25 March 2008 saw ZANU PF loosing seats to the main rival party, MDC-T. The Presidential elections on the other hand resulted in a draw or lack of win by majority and consequently “run-off” elections were held in line with Constitutional provisions on the 27th of June 2008. MDC T boycotted the elections citing political violence and as a result, Robert Gabriel Mugabe won the elections by 85.5%. Political strife followed and that resulted in the negotiations between the two political parties with Thabo Beki, the former President of South Africa, being the facilitator following the signing of a Memorandum of Understanding [MoU] between Zanu PF and the two MDC formations [MDC-T and MDC-M] on the 21st of July 2008. The negotiations resulted in the signing of an Interparty Political Agreement or a Power Sharing Agreement on the 15th of September 2008 which entrenched a Government of National Unity [GNU].

 

Article 20 of the Interparty Political Agreement was incorporated as Schedule 8 of the Constitution through Amendment No. 19. This article relates to the structure of government in pursuant to the Interparty Political Agreement. In other words, the provision sought to operationalize the power sharing structures in the new government of unity.  This schedule is meant to apply and override any parts of the constitution contrary to its contents. Through the operation of Schedule 8, Zimbabwe saw itself having a Prime Minister for the 2nd time after independence. The Prime Minister is deputized by his/her two Deputy Prime Ministers. Currently Morgan Tsvangirai, the MDC- T Party President is the Prime Minister whereas Thokosani Khupe and Welshman Ncube, former MDC-M Secretary General, are the Deputies. This government structure will come to its end after the enactment of a new Constitution and elections scheduled for end of year.

 

The powers of the President include chairing the Cabinet and subject to the Constitution exercising executive authority; declaring war and making peace; proclaim and terminate martial law; and after consultation with the Vice Presidents, the Prime Minister and the Deputy Prime Ministers, allocates Ministerial portfolios in accordance with Interparty Political Agreements. It is on the latter the President has been accused of violating the political agreement by appointing certain persons without consulting the Prime Minister, e.g. the appointment of Governors.

 

On the other hand, it is the Prime Minister’s responsibility to oversee the formulation of government policies by the Cabinet and to ensure that the policies so formulated are implemented by the entirety of government. In addition, he has to ensure that the Ministers develop appropriate implementation plans to give effect to the policies decided by Cabinet: in this regard, the Ministers will report to the Prime Minister on all issues relating to the implementation of such policies and plans.

 

The amendment also provides for two Vice Presidents of Zimbabwe who are appointed by the President either having been appointed by the President or ZANU PF. Currently the two Vice Presidents are Joyce Teurai Ropa Mujuru and John Lander Nkomo.

 

Interestingly while the President enjoys immunity while in office and is not liable to any civil or criminal proceedings in any Court, the Prime Minister does not enjoy the same immunity. This can be inferred from the Constitution as amended, as it is silent as regards immunity in relation to the Prime Minister.

 

Chapter V – The Legislature

This Chapter states that the Legislative Authority of Zimbabwe shall be vested in the Legislature which shall consist of the President and Parliament, i.e. the House of Assembly and Senate.  Parliament also has the prerogative of conferring legislative functions on any person or authority. The composition of the Senate has by virtue of Amendment No.18. [[22]] increased to ninety-three senators of whom six are elected in each of the ten provinces; and ten shall be Provincial Governors; and two shall be the President and the Deputy President of the Council of Chiefs; and sixteen shall be Chiefs, being two Chiefs from each of the provinces, other than the metropolitan provinces; and the last five are Presidential appointees. The House of Parliament has increased from 120 members to 210 members.

 

The Legislative authority of Parliament is enshrined in section 50. This states that subject to provisions of this constitution, parliament may make laws for the peace, order and good government of Zimbabwe.

 

The power of Parliament to make laws shall be exercised by Bills passed by Parliament and assented to by the President.  The President may within twenty-one days of the presentation of a Bill, assent to or withhold his assent

 

One of the main issues that the two main political parties agreed was the need for a new homegrown constitution before the GNU expires at the end of 2010 and elections are held. This new Constitution was to govern these elections.  At the time of writing, the consultations were finished and COPAC, a committee set to facilitate in the constitution making process, was consolidating its findings so as to table it before the Parliament.

 

Some of the issues that people want to include in the new Constitution are: the term of the President; right to education and health. The Gays and Lesbians Association of Zimbabwe wants to have freedom of sexual orientation to be encompassed as well. [[23]] It has been alleged that the consulting process was marred with intimidations and political campaigning. It is however, hoped that, even though there is no guarantee that the Constitution will not be amended again, the Constitution will limit the presidential term to two terms only, like what other countries provides and broaden human rights to cover socio-economic rights as well.

 

The constitution as it is has been amended 19 times far from the American Constitution that was drafted more than a century ago. Below is an outline of the salient features of these amendments with special reference to Amendment No. 17, 18 and 19.

 

1)             Amendment (No. 17) Act, 2005 (Act No. 5 of 2005)

This Amendment inserted s16B whose salient features are:

a)            all agricultural land that was identified on or before or after the 8th July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7, being agricultural land required for resettlement purposes or whatever purpose is acquired by and vest in the State with full title with effect from the appointed day [[24]]

b)            once  land is identified there is no need to issue a notice

c)             No compensation is payable for all land acquired in terms of the Constitution except for any improvements effected on such land before it was acquired.

d)            No person shall apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge except if the challenge relates to the amount of compensation payable for any improvements effected on the land before it was acquired.

e)             An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land identified for resettlement or other purpose.

f)              The former colonial power is still obliged to pay compensation for land acquired for resettlement purpose.

The underlying principle of s 16B is the principle a state has an inherent right to compulsorily acquire private property within its territory for public purposes and to pay fair compensation for the property acquired. This amendment in essence introduces two procedures to effect compulsory acquisition namely: the actual acquisition of land as provided in s 16B (2) (a) and the right to payment of fair compensation as provided for under s 16B (2) (b).

 

In the first instance, the acquiring authority publishes a notice in the Gazette identifying the agricultural land to be acquired and stating therein the purpose for which the land is required. The acquiring authority need not to give a notice of intention to acquire the land to the owner of the land before acquisition and neither is it obliged to state that the acquisition is reasonably necessary for utilisation of the land for resettlement purposes. [[25]] Also, the acquiring authority is no longer obliged to apply to the Administrative Court for an order confirming the acquisition.

 

The second aspect is on the payment of compensation. Contrary to the trite principles of acquisitions of property belonging to a third party by the domain that fair compensation has to be paid for the property so acquired,[[26]] s 16B(2)(b) provides that compensation is only for the improvements effected to the acquired land.  The ICSID have held that acquisition of land in pursuit of s16B amounts to expropriation and the owners of the farms are entitled to be compensated.[[27]]

 

AMENDMENT (NO. 18) ACT, 2007

This amendment reduced the Presidential term to five years from six years so that it is concurrent with the life of the Parliament.  It also added grounds under which the term of office of the President will terminate, i.e. after five years or a lesser period where the President earlier dissolves Parliament a longer period where the life of Parliament is extended. However, the President will continue in office until the person elected as President at the next election of President enters office. [[28]]

 

The Amendment also provides for the suspension of members convicted with any crime, in or outside Zimbabwe, whether that crime carries an imprisonment term of just a fine. The period of suspension for that member will be specified by the Senate or the House of Assembly but should not exceed six months.

 

Further, the Supreme Court saw itself having a Deputy Chief Justice. The Deputy Chief Justice act as Chief Justice whenever the office of Chief Justice is vacant or the Chief Justice is absent from Zimbabwe or is unable to perform the functions of his office by reason of illness or any other cause. [[29]] The Deputy also forms part of the Judicial Services Commission, in the absence of the Chief Justice. [[30]]

 

In essence, the main aim of the amendment was to harmonize, the Parliamentary and Presidential elections. This saw, Zimbabwe having the much contested harmonized Parliamentary and Presidential elections of March and the consequent “run-off” elections of June 2008.

 

AMENDMENT (NO. 19) ACT 2008, ACT NO. 1 OF 2009

This Amendment was made after the signing of the Interparty Political Agreement on the 15th of September 2008 and it sought to regularize and legalize the agreed new inclusive government. Of essence the Amendment cover the following issues: 

a)    The question of the attainment and retention of Zimbabwe citizenship;

b)    Political Rights;

c)     Creation of Independent Commissions in particular, Zimbabwe Media Commission; Zimbabwe Electoral Commission; Human Rights Commission and Anti-Corruption Commission.

d)    Incorporation of Art 20 of the Interparty Political Agreement.

Issues a), c) and d) were dealt with above hence it is only on Political Rights that emphasis will be on.

 

In relation to human rights, a new section inserted was in the Constitution after s 23, viz s 23A entitled “Political rights”. In essence, this new section provides that every Zimbabwean citizen shall have the right to a free, fair and regular election for the office of President, and any legislative body, including a local authority established under the Constitution or any Act of Parliament; and free and fair referendums whenever they are called. In addition, every adult Zimbabwean citizen has the right to vote and vote in secret in referendums and elections for any legislative body established under the Constitution, and to stand for public office and, if elected, to hold office. From the wording of the s23A (a) & (b) it seems as if the right to vote and voting in secret is restricted to referendums and elections for any legislative body, e.g. the Parliament and not the office of the President, unless the term “legislative body” is to be interpreted to include the Parliament and President by virtue of s32 (1) which provides that the Legislature shall consist of the Parliament and President.

 

NEW PIECES OF LEGISLATION

There are two noticeable pieces of legislation that have been passed by the Legislature, which deserves attention, viz: the Domestic Violence Act and the Indigenisation and Economic Empowerment Act.  

 

a)    THE DOMESTIC VIOLENCE ACT [CHAPTER 5.16]

This Act was passed in 2006 as a result of strong lobbying by the women organizations, such as Msasa Project. In the Act domestic violence means any unlawful act, omission or behavior which results in death or the direct infliction of physical, sexual or mental injury and includes the following physical, sexual, emotional, verbal and psychological abuse; economic abuse and abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women such as forced virginity testing; or female genital mutilation; or pledging of women or girls for purposes of appeasing spirits. [[31]] "Economic abuse" is defined as including the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses; denying the complainant the right to seek employment or engage in any income-generating activity. [[32]]

 

The Act empowers the police to arrest without warrant, any person whom he or she reasonably suspects has committed or who is threatening to commit an act of domestic violence which, constitutes a criminal offence and such person has to be bought before the magistrate within forty-eight hours of his/her arrest [[33]] Any aggrieved person can get recourse from the Magistrate Courts through a Protection order.

 

Since its inception, this Act where it has been invoked, the law have come to the help of the victims or complainants and protection orders have been granted. However, in cases where the complainant and respondent are a married couple, the protection orders have resulted in divorces. It has been discovered that the culture has to a greater extend inhibited the effective implementation of this Act. This is exacerbated by the fact that the police officers and some public prosecutors are unable to distinguish between physical violence which amounts to domestic violence and violence which gives rise to charges of assault. This can be attributed to lack of proper training on domestic violence.

 

It is however, hoped that the civil society will partner with the government so as to conduct workshops and training on domestic violence with the police force and public prosecutors, so that the noble objectives of the Act are fulfilled.

 

 

b)    INDIGENISATION AND ECOMONIC EMPOWEREMENT IN ZIMBABWE

In a bid to address economic imbalances, the Indigenisation and Economic Empowerment Act [Chapter 14.33] and its Regulations were enacted in 2008 and 2010 respectively. The Act which came into law in March 2008 requires foreign companies to dispose off at least 51% of their equity to Indigenous Zimbabweans. On the other hand, the Regulations provides that all businesses with a net asset value equal to or above US$ 500,000 located in Zimbabwe should formulate plans that will lead to 51% of the shares in the firm being transferred to “indigenous” Zimbabwean shareholders within five years from the date of operation of the regulations. The regulations requires affected companies to submit an overview of their current shareholders, and a plan for implementing indigenisation, within 45 days from when the regulations came into effect on 1 March 2010.

 

The Minister of Youth, Development, Indigenisation and Empowerment, who currently is Saviour Kasukuwere, will then use these overviews to clarify if certain sectors qualify for lower minimum indigenisation quotas. This clarification would be published by the Minister, in a notice, by 28 February 2011. Currently, the regulations make no differentiation between types of businesses or different sectors and at the time of writing the only notice published relates to the mining sector and states that every mining company with a threshold of $1 has to comply with the indigenisation regulations.

These indigenisation laws have generated much debate, some of the concerns that have been raised are:

a)    The first concern raised is the question of compensation, in that even if companies are willing to part with 51% of their shares to indigenous Zimbabwe, will they be compensated.

b)    The second concern is on the beneficiaries of such regulations. Despite indications by the Minister that indigenisation is intended to fight poverty among the majority of the people, and the inclusion in the regulations of reference to employee share ownership schemes, the regulations do not seem overly focused on achieving broad-based indigenisation.

c)     Still on beneficiaries, the major question is who is really an indigenous in terms of the law so as to benefit from the provisions of the law. The question is thus on the construction of the term “indigenous” vis a vis the objectives of the Act and the Regulations. [[34]]

d)    Another concern is on the relationship between Bilateral Investment Treaties [BIT] and Indigenisation laws, in particular, whether it amounts to indirect expropriation.

One of the fears that is about to turn into reality is that this law will be used as a political tool instead of empowering the Zimbabweans. Recently the President of Zimbabwe, Robert Gabriel Mugabe, on the 21st February Movement Celebrations, was quoted inviting the Indigenisation Minister to first indigenize companies belonging to countries that have imposed sanctions on Zimbabwe. 

 

The Justice System in Zimbabwe [[35]]

The justice system in Zimbabwe comprises the following elements: the Supreme Court, the High Court, the Administrative Court, Magistrates’ Courts, the system for the administration of the courts, the office of the Attorney General and associated public prosecutors, and the legal profession. The Justice System is a crucial ingredient to the smooth flow of the rule of law in Zimbabwe. It is at the apex of ensuring that Separation of Powers is observed and practiced. The judiciary provides for Checks and Balances in the exercise of power by the other two arms of state namely, the Executive and the Legislature. In recent years the Justice system has been massively compromised by lack of adequate government support in areas such as finance and protection of members of the judiciary. The disregard of human rights defenders such as lawyers has also massively jeopardized the Justice system in Zimbabwe.

The Constitution and the Judiciary

The Constitution contains various provisions which are relevant generally to the judiciary in Zimbabwe and which provides, inter alia, for the separation of powers between the executive and the judiciary, the composition of the judiciary and for judiciary independence:

 

“79 Judiciary Authority

The judicial authority of Zimbabwe shall vest in –

a)    The Supreme Court and

b)    The High Court and

c)     Such other court subordinate to the Supreme Court and the High Court as may be established by or under an Act of Parliament.”

 

The provisions of subsection (1) shall not be construed as preventing an Act of Parliament from:

·       Vesting adjudicating functions in a person or authority other than a court referred to in subsection (1); or

·       Vesting functions other than adjudicating functions in court referred to in subsection (1) or in a member of the judiciary.

 

“79A   Judiciary

(1)            The judiciary of Zimbabwe shall consist of-

a)             The Chief Justice, who shall be the head of the judiciary; and

b)             The judges of the supreme Courts ; and

c)              The judge President and the other judges of the High court ; and

d)             Persons presiding over the courts subordinate to the Supreme Court and the High Court that are established by or under an Act of Parliament”

 

“79B   Independence of the judiciary

In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority, except to the extent that a written  law may place him under the direction or control member of the judiciary”.

Independence of the Judiciary

In common practice with various other countries, under the Constitution of Zimbabwe the process of appointing the senior judiciary is not formally the exclusive preserve of the executive or legislature. At least this is how it appears on paper, but the reality is that the executive has massive influence over the appointment of judges of superior courts. The ouster of judges is also done through unorthodox means. This highly negates the concept of judicial independence as judges are not free to make independent decisions that might provoke the government. It is believed that in Zimbabwe the appointment of judges is not as open as it appears on paper given that the Judicial Services Commission is filled with the President’s appointees, sympathizers and beneficiaries, hence when consulted their opinions are easily swayed and influenced. Evidence is the appointment of relatively junior and inexperienced judges to the superior benches ahead of their more experienced and senior counterparts.

 

Also of late, the independence of the Judiciary has been under siege because of the economic hardships and political appointment to the Bench, for instance, the appointment of George Chiweshe to be the judge president for High Court has been regarded as a political appointment.  The bench has been receiving plasma televisions and motor vehicles, courtesy of the Reserve Bank of Zimbabwe. This move has been seen as allegiance buying by the government.  

Appointment of judges – the Judicial Service Commission

Section 90 and 91 of the Constitution make provision for a Judicial Service Commission the functions of which are “to tender such advise and do such things in relation to the judiciary as are provided for by this Constitution or by or under an Act of Parliament” and to which section 84 of the Constitution gives a role in the appointment of senior judges.

 

The Judicial Service Commission comprise the following members: the Chief Justice or Deputy Chief justice or (section  90(1)(a) ) ; the Chairman of the Public Service Commission (section 90 (1) (b)); the Attorney –General (section 90(1) (c)) ; and not less than two or more than three other members appointed by the President (section 90 (1)(d)) of which one appointee must be person who is or has been a Supreme or High Court judge, a person who has been qualified as a legal practitioner in Zimbabwe for not less than five year or is a person possessed of such legal qualifications or experience as the President considers suitable and adequate for his appointment to the Judicial Services Commission and the remaining Presidential appointees must be chosen for their ability and experience in administration or their professional qualifications “or their suitability otherwise for appointment”.

 

Pursuant to section 47(1) of the Constitution, the Chairman of the Public Service Commission is appointed by the President and, pursuant to section 74(2) of the Constitution, the Attorney –General is appointed by the President after consultation with the Judicial Service Commission.

 

Of the possible six members of the Judicial Service Commission, three are directly appointed to the Commission by the President (section 90(1)(d)), one is directly appointed by the President  to an office by virtue of which he is  member of the Commission (section 90(1)(b)) and two are appointed to the Commission by virtue of being holders of offices to which they are appointed by the President after consultation with the Commission (section 90 (1)9a) and (c) : the Chief Justice or his alternate and the Attorney General ). There is, therefore, no representation on the Judicial Services Commission independent of the direct or indirect influence of the executive.

 

Pursuant to section 84(1) of the Constitution, Supreme Court and High Court judges, including the Chief Justice, are appointed by the President after consultation with the Judicial Service Commission established under section 90 and 91.

 

There are no limits imposed by the Constitution on the number of Supreme Court and High court judges who may be appointed either in aggregate or at one time by the Judicial Services Commission.

 

There is no provision in the Constitution for the procedure by which candidates for the senior judiciary are selected for consideration by the Judiciary Service Commission.  Further there are no rules or regulations for the conduct of the selection process.  The process is subject, therefore, to a high degree of opacity.

 

Section 84(2) provides that if the appointment of the Chief justice or a judge of the Supreme Court or High Court is inconsistent with any recommendation made by the Judicial Service Commission, the President shall cause Parliament to be informed as soon as is practicable.

 

No provision is made for the resolution of any inconsistency between the appointment of the Chief Justice or a judge of the Supreme Court or high Court and the recommendation of the Judicial Service Commission.

Judicial tenure and remuneration

Judicial tenure is dealt with in section 86 of the Constitution. Supreme Court and High Court judges may sit until they reach the age of sixty-five, unless before that age the judge elects to retire at the age of seventy.  Such a selection shall be subject to the submission to and acceptance by the President, after consultation with the Judicial Service Commission, of a medical reports as to the mental and physical fitness of that judge (section 86 (1) 9a)).  The office of a judge of the Supreme Court or the High Court shall not without his consent be abolished during the currency of his tenure (section 86 (3)).

 

Section 88 of the Constitution makes provision for judicial remuneration and allowances such that the salaries of Supreme Court and High Court Judges are fixed from time to time by Act of Parliament and are paid out of the Consolidated Revenue Fund and shall not be reduced during a Judge’s period of office.

Removal of judge from office

Section 87 of the Constitution provides for the circumstances in which a judge may be removed from office. Subsection (1) provides that a judge of the Supreme Court or High Court may be removed from office “only for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehavior, and shall not be so removed except in accordance with the provisions of the section”. Subsections (2)-(9) set out the procedure fro the removal of a judge from office.

 

            “87 Removal of judges from office

(1)           

(2)           if the President considers that the question of the removal from office of the Chief Justice ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(3)           If, in the case of a judge of the Supreme Court or the High Court other than the Chief justice, the Chief Justice advises the President that the question of the removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(4)           A tribunal appointed under subsection (2) or (3) shall consist of not less than three members selected by the President from the following-

a)             Persons who have held office as a judge of the Supreme Court or the High Court;

b)             Persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil or criminal matters in  a country in which the common law is Roma-Dutch or English, or English is an official language.

c)              Legal practitioners of not less than seven years’ standing who have been nominated under subsection (5).

d)             [repealed 1981]

One of whom shall be designated by the President as chairman.

(4a)        …

(5)           it shall be the duty of the associated which is constituted under an Act of Parliament and which represents legal practitioners practicing in Zimbabwe to nominate a panel containing the names of not less than three duly qualified legal practitioners for the purposes of subsection 4(c) when required to do so by the President.

(6)           A tribunal appointed under section (2) or (3) shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether or not be should refer the question of the removal of the judge from the office to the Judicial Service Commission, and the President shall act in accordance with such recommendation…

(7)           If the question of the removal of a judge has been referred to the Judicial Service Commission in accordance with the subsection (6) and the Commission advises that the judge be removed from office, the President shall, by order under the public seal, remove the judge from office.”

 

There are a number of observations which may be made about the provisions in the Constitution providing for procedures for the removal of judges from office.  Whilst the President’s power of appointment to the tribunal provided for in subsections (2) and (3) is circumscribed by the provisions regarding the qualifications of the appointees provided for in subsection (4), there is no requirement imposed on the President that the tribunal be constituted by representatives from each of the categories of appointee in subsection (4)(a)-(c).  There is no requirement that the tribunal conducts its hearing in public or that it should publish its findings.  In the event that the tribunal recommends referral of  the question of removal of a judge to the Judicial Services Commission, it is the recommendation of the latter body which the President is obliged to follow (subsection (9); as has been noted above, the Judicial Services Commission is appointed directly by the President).

 

The process of the removal of judges is, therefore, capable of influence by the executive in both the composition of the tribunal and the Judicial Services Commission which are charged by the Constitution with the task of evaluating the issues regarding the removal of a judge from office.

 

To date only two tribunals have been established under section 87.  In 1992, Chambakare J, a High Court Judge, was the subject of an inquiry pursuant to section 87.  Chambakare J resigned before the tribunal made its report to the President.  In 1995, a tribunal was established to inquire into the conduct of Blackie J, a High Court Judge.  Concerns had been raised about the conduct of the judge in the hearing and granting of bail applications on a Sunday at a police station. The tribunal found that there was no misbehavior within the meaning of section 87 (1) such as would justify a recommendation under subsection (6) that the question of removal be referred to the Judicial Service Commission.

The Supreme Court

Section 80 (1) of the Constitution provides for the creation of a Supreme Court “which shall be the superior court of record and the final court of appeal for Zimbabwe”.  Subsection (2) and (3) provide that the Supreme Court shall consist of: (a) the Chief Justice; (b) “such other judges of the Supreme Court, being not less than two, as the President may deem necessary”, and (c) any additional judge or judges appointed for a limited period by the Chief Justice, such additional judges to be serving High Court or Supreme or former Supreme Court or high Court judges.

 

As has been noted above, the Supreme Court, in addition to appellate jurisdiction, exercises original jurisdiction in cases where “any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person)” that person may apply to the Supreme Court for redress.  The Supreme Court therefore has a vital role to perform in the enforcement of the Declaration of Rights contained in the Constitution.

 

Ordinary appeals are usually determined by a panel of at least three judges, one of who may not be an additional judge, and occasionally by a panel of two judges.  In constitutional matters, the Justice Minister or the Chief Justice may direct that the case be heard by a panel of at least five judges, in which case only two members of the panel may be additional judges.  The Chief Justice may, in his discretion, appoint a larger panel to hear any particular matter.

 

The current Chief Justice is Godfrey Chidyausiku, who took over from Gubbay CJ. Chidyausiku is the most senior judge. Others who sit on the bench of the Supreme Court of Zimbabwe are Justice Paddington Garwe, former Judge President in the High Court, Justice Wilson Sandura, Justice Vernanda Ziyambi and Justice Luke Malaba, who is the Deputy Chief Justice.

 

Chidyausiku CJ was appointed as Chief Justice ahead of numerous other, more senior judges and was the first appointment to the office made directly from the High Court Bench.  It has also been reported that Chidyausiku CJ is a beneficiary of the Government’s commercial farm allocation scheme.  In a report prepared from various sources including lists published by the Ministry of Lands and Agriculture in February and June 2002, Chidyausiku CJ is listed as the owner of 895 hectares known as “Estates Farms” in Mazoe.

 

The High Court

Section 81 (1) of the Constitution provides for the creation of a High Court as a superior court of record.  Subsection (2) and (3) provide that the High Court shall consist of: (a) the Chief Justice; (b) the Judge President of the High Court; and (c) “such other judges of the High Court as may from time to time be appointed”. And (d) any Supreme Court Judge appointed as an acting High Court Judge by the Chief Justice after consultation with the Judge President.

 

On his permanent appointment to the office of Chief Justice in August 2001, Chidyausiku J was replaced as Judge President of the High Court by Garwe J who was not the most senior judge of the High Court eligible for such an appointment.

 

Since 2000, a number of high Court Judges have resigned form the bench: Bartlett, Blackie, Chatikobo, Gillespie and Devittie JJ. 2005 saw Zimbabwe having its first female Judge President in the High Court, Rita Makarau. The joy was short-lived as she has been since been “promoted” to be the President of the Judicial Service Commission. The new Judge President is George Chiweshe, whose appointment caused public outcry in the legal fraternity, as it was seen as a political promotion for a job well done in the 2008 elections, where he chaired the Electoral Supervisory Commission and declared the elections free and fair. 

The Administrative Court

The Administrative court was established in 1979 by section 3 of the Administrative Court Act and has special jurisdiction conferred on it by statute over particular matters but generally, the Court acts as a court of appeal from a wide range of administrative tribunals.

 

The Administrative Court is “special” within the meaning of section 92 of the Constitution.  Administrative Court Judges, known as “Presidents”, are appointed by the President after consultation with the judicial Service Commission (section 92 (1)).  The condition of service of an Administrative Court President may not be amended during his term of office nor may his office be abolished without his consent (section 92(1)).  By virtue of the provision of section 79A (d) and79B, the judges of special courts such as the Administrative Court are subject to the same constitutional safeguards as regards independence of a judiciary as Supreme Court and High Court judges.  However, the section 86(tenure) and 87 (removal) do not appear to apply to judges of special courts such as the Administrative Court.

 

The jurisdiction of the Administrative Court in relation to land acquisition cases under the Land Acquisition Act has been ousted by virtue of s 16B (3) (a) of the Constitution. [[36]] This provision prohibits a person having any right or interest in the land to apply to a court to challenging the acquisition of the land by the State, and no court shall entertain any such challenge. However, the person concerned may in accordance with s16(1) which regulates compulsory acquisition of land, challenge the amount of compensation payable for any improvements effected on the land before it was acquired. [[37]] However, the retained its appellate jurisdiction in matters relating to various publication laws such as the Access to Information and Protection of Privacy Act.

Magistrates’ Court

There are approximately 300 magistrates in Zimbabwe.  The magistracy is a professional office with magistrates qualifying for the office by obtaining a law degree from the University of Zimbabwe or by graduating from the Judicial College of Zimbabwe. After qualification magistrates must apply to the Public Service Commission for employment.

 

The Public Service Commission was created by sections 73 and 74 of the Constitution which provide (under Chapter VII entitled “the Public Service”):

 

                  “73          Public Service

(1)            There shall be a Public Service for the administration of the country.

(2)           An Act of Parliament shall make provision for the organization, administration and discipline of the Public Service, including the appointment of persons to posts or grades in the Public Service, their removal from office or reduction in grade, their punishment for misconduct and the fixing of their conditions of service.

(3)           [repealed in 1993]”

 

                  “74          Public Service Commission

(1)            there shall be a Public Service Commission which shall consist of a chairman and not more than seven other members appointed, subject t the provisions of subsection (2), by the President.

(2)           The persons to be appointed under subsection (1) shall be chosen for their ability and experience in administration or their professional qualifications or their suitability otherwise for appointment, and the chairman and at least one other member shall be persons who have held a post or posts of a senior grade in the Public Service for periods which in the aggregate amount to at least three years.

(3)           The chairman may delegate to another member of the Public Service Commission his functions as chairman of the Police Service Commission, the Defense Forces Services Commission or the Prison Services Commission.

 

Magistrates are, upon appointment by the Public Service Commission, civil servants and are assigned to the Ministry of Justice.  Magistrates lack most of the basic protections afforded to members of the Supreme Court, High Court and special courts referred to in previous section of this report including, arguably, that of the independence of the judiciary contained in section 79B of the Constitution.

As civil servants their conditions of service are fixed by the Pubic Service Commission and they serve, like any other civil servant, “at the pleasure” of the Public Service Commission, “magistrates can be hired and fired at will”.

 

Magistrates’ Courts are the courts of first instance in criminal matters and therefore occupy the important position of deciding on bail land remand accused persons in most cases.  The importance of this position is thrown into relief when the large number of allegations of violence in police custody and the large number of cases in which charges are not preferred or are eventually withdrawn are considered.

The System for the Administration of the Courts

The central figure in the administration of the Zimbabwe court system is the Registrar of the relevant court.  The court Registrar is responsible, inter alia, for fixing the amount of security to be lodged by an applicant following the filing of an election petition.  The Registrar had direction as to whether to allow access to court records in the High Court and the Supreme Court.  The Registrar is also the person administering the court roll and who is therefore in control of assigning hearing dates for cases.

 

Messengers of the court and sheriffs are responsible for serving court process and enforcing court orders.  It is self-evident that without the service of process or the effective enforcement of court orders, much of the purpose of litigation, both civil and criminal, is rendered otiose.

The Office of the Attorney-General and Public Prosecutor

It would appear that the Attorney General is part of the Cabinet (even if he is not) as he prosecutes on behalf of the state. In Zimbabwe the AG is in constant and close contact with the Minister of Justice who is part of the executive, or his designate who directs him in certain matters. The AG thus appears like an appendage of the President and Cabinet as he pays the piper calls the tunes.

 

The office of the Attorney-General is created by section 76 of the Constitution which provides, inter alia, that the Attorney-General is appointed by the President after consultation with the Judicial Service Commission  (section 76(2)) and is a non-voting member of the Cabinet and of Parliament (section 76 (3b0).

 

Section 76 also sets out the Attorney-General responsibilities and powers in relation to the prosecution of offences:

 

“76          Attorney General

(1)            The Attorney-General shall have power in any case in which he considers it desirable so to do –

(a)           to institute and undertake criminal proceedings before any court, not being a court established by a disciplinary law, and to prosecutor or defend an appeal from any determination in such proceedings.

(b)           To take over and continue criminal proceeding that have been instituted by any other person or authority before any court, not being a court established by a disciplinary law, and t prosecute or defend an appeal from any determination in proceedings so taken over by him; and

(c)            To discontinue at any stage before judgment is delivered any criminal proceedings has instituted under paragraph (a)or taken over under paragraph (b) or nay appeal prosecuted or defended by him from any determination in such proceedings…

(4a)        the Attorney-General may require the commissioner of Police to investigate and report to him on any matter which , in the Attorney-General’s opinion, relates to any criminal offence or alleged offence, and the Commissioner of Police shall comply with that requirement.

(2)           The powers of the Attorney-General under subsection (4) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.

(3)           The powers of the Attorney-General under subsection (4)(b) and (c) shall be vested in him to the exclusion of nay other person or authority…

(4)           In the exercise of his powers under subsection 94) or (4a), the Attorney-General shall not be subject to the direction or control of any person or authority.

 

The Attorney-General is an independent prosecution authority empowerment to order investigations of criminal or alleged offences and bring criminal proceedings and with exclusive power to take over and continue or take over and discontinue prosecutions commenced either by him or by other persons.

 

The present Justice Minister, Patrick Chinamasa, who is notorious for having a hand in the crafting and drafting repressive legislation, occupied the office of Attorney-General until 2000 when he was appointed Justice Minister and replaced Attorney-General by Andrew Chigovera, who then retired aged 50, in April 2003. 

 

Currently, the Attorney General [AG] is Johannes Tomana who was appointed to the position by the President of Zimbabwe, Robert Gabriel Mugabe on the 18th of December 2008. He previously served as Deputy Attorney-General under Sobusa Gula-Ndebele from 2006 to May 2008. Just like his predecessors, Tomana has been accused of furthering the interests of ZANU PF. In particular has been directly involved in the prosecution of Roy Bennett and Jestina Mukoko where the two have been accused of treason and banditry, respectively. Of the two, Mukoko has since been acquitted.    

 

The AG’s office is of late been seen as an extension of the tyranny rule towards the ruling party’s rivals, in particular, the Public Prosecutors have been known notoriously of “over- invoking” s121 of the Criminal Procedure and Evidence Act. This section reads as follows:

121 Appeals against decisions regarding bail

….

(3) A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately after the decision, the judge or magistrate is notified that the Attorney-General or his representative wishes to appeal against the decision, and the decision shall thereupon be suspended and the person shall remain in custody until—

(a) if the Attorney-General or his representative does not appeal in terms of subsection (1)—

(i) he notifies the judge or magistrate that he has decided not to pursue the appeal; or

(ii) the expiry of seven days; whichever is the sooner; or

(b) if the Attorney-General or his representative appeals in terms of subsection (1), the appeal is determined.

 

(4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not suspend the decision appealed against.

(5) A judge who hears an appeal in term of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

….

(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal to admit to bail of a person charged with any offence referred to in paragraph 10 or 11 of the Third Schedule, in which event subsections (3) to (7) shall apply to such appeal.

 

Through this section many accused persons have been denied bail and found themselves rotting in prison on remand, especially those charged of politically motivated or aligned crime.

 

The Legal Profession

The majority of lawyers in Zimbabwe are represented by the Zimbabwe Law Society. The current president of the law society is Joseph James and its Secretary is Arnold Tsunga. There is also a Zimbabwe Bar Association, which exists for those practitioners who choose to practice solely as advocates.  The number of lawyers in Zimbabwe is approximately 900-1200, of whom the majority practice in Harare.  Approximately 100 practice in Bulawayo.

 

The legal profession in Zimbabwe is a fused profession and is regulated by the Law Society of Zimbabwe introduced by the s51 of the Legal Practitioners’ Act [Chapter 27:07], which makes provision for the registration of practitioners as well as for legal education. Registration procedures for admission as legal practitioner to the High Court remain in the hands of the court.  Requirements for registration are, inter alia, that the practitioner should be a “fit and proper person” and that the practitioner should be resident in Zimbabwe.

 

Candidates are required to have such qualifications as are prescribed in the rules made by the Council for Legal Education.  The Council for Legal Education is a body comprising eight members appointed by the Justice Minister.  Of the members of the Council, two are direct ministerial appointments, the Chief Justice and Attorney-General each appoint one further member and the remaining four are selected from nominations of four candidates each made by the Law Society of Zimbabwe and the Law Faculty Board of the University of Zimbabwe.

 

The following four paragraphs are steps necessary for the betterment of the legal system in Zimbabwe. 

Remuneration of Judicial Officers

Given the current economic meltdown in Zimbabwe, Judicial Officers are inadequately remunerated. This paves way for corrupt activities within the system. Judges and Magistrates are easily bribed to rule in favor of the accuse persons and this is difficult to detect. The presiding Judicial Officers merely overlook certain aspects of procedure and acquit the accused persons. Magistrates are not provided with security to their homes and they are not given transport by the government. They therefore resort to the use of public transport and this strips them of the dignity and authority they command when they are in the courts of law. Their security is also compromised in the process. Only fair and adequate salaries can ensure that Judicial Officers desist from underhand and shady dealings.

Security of Records

The disappearance of records while in either police custody or in the custody of the courts is one of the corrupt activities which defeat the course of justice. This is because records are not carefully and jealously guarded and secured. The Clerk of Court is the custodian of records in any magistrate’s court, but since he / she does not work alone there is a likelihood that his / her workmates can cause the disappearance of records. Poverty and inadequate salaries are to blame for the disappearance of records in the courts as judicial personnel strive to supplement their meager salaries.

 

The system of recording cases is mainly manual and often times the records are in shambles and are often tattered and torn. There is need for a computerized system of recording cases and their proceedings. This system must be administered by one central authority to avoid tempering with records by unscrupulous persons.

Amelioration of the Shortage of Manpower and Ill-Qualified Personnel

Most lawyers who are highly qualified shun the magistrate’s courts or any government department, as the government is notorious for poor remuneration. In most cases there is usually a shortage of Magistrates and this delays cases pending before it. Those who join the Magistrates courts do so for the purpose of acquiring experience and nothing more. As soon as they have it they resign and join private practice. There is never a point where experienced magistrates are retained by the government as they usually run away with their experience and expertise. In essence there is nothing to motivate and retain judicial personnel, some of whom opt to work in the Diaspora or in foreign countries.

Upgrading of Inadequate Resources

The libraries in most magistrates’ courts in Zimbabwe need massive upgrading. New and updated information resources need to be purchased for these courts. Currently courts rely on editions of books which have since been revised. Hence the magistrates are not abreast with current legal developments, particularly in the fields of international law.

 

Furniture is also vital. In some courts, particularly in rural areas, personnel share the few pieces of furniture available. This compromises the privacy of the person’s work. Hygiene and cleanliness is also vital for the courts to retain their dignity. These points can all be summed up under the topic of economic constraints facing the courts, not to mention the nation at large.

 

There is no excuse for the government’s failure to invest in the courts and the Justice delivery system. It purely a case of lack of interest and neglect of the Judiciary by authorities who seek to preserve the status quo. Improving the system can have detrimental repercussions to the government which is often the subject of litigation by its citizens. For example, improving the Administrative Court would result in judgments being handed down against the government and in favor of the citizens. This kind of scenario is undesirable for the government and they would rather retain the current chaos as it currently works in favor of the government.

 

Specialist/Specialized Courts in Zimbabwe [[38]]

Courts in Zimbabwe may be divided into two groups: Ordinary Courts and Specialists Courts. The ordinary courts are fairly well known. They are Magistrate’s Courts, High Court and Supreme Court. “Specialist courts” only deal with specialists and special areas, which have been deemed by the lawmaker to require a ‘special court’. In other word, the specialist court only deals with the issue it was set up to deal with. A common example of a specialist court is the Labor Relations Tribunal, which deals with labor disputes only. Other and the important examples of specialist courts are the income tax court and the Administrative Courts and the Electoral Court. The lawmakers have also created two courts, which administer ‘customary law’ only, and these are by definition, specialist courts.

Advantages of Specialist Courts in Zimbabwe

Ordinary courts deal with all sorts of cases and therefore tend to be overloaded.  A person wishing to approach the ordinary court is therefore usually faced with a delay before his/her case is heard. By contrast, no such delay should be faced in a properly functioning system of specialist courts. Since a specialist courts deals only with specified issues, it should be less loaded than the ordinary courts; consequently it should be faster to have a case heard in the specialist than the ordinary court.

 

Ordinary courts invariably adopt procedures which are complicated and confusing, and in most cases are only understood by lawyers. Such procedures work adversely against a person who is not represented by a lawyer. On the other hand, most specialist courts adopt informal procedures, which are flexible and therefore capable of being understood by the non-lawyer.

 

This flexibility and simplicity is conducive for justice.  Ordinary courts may have to rely on conflicting expert evidence; this is avoided in specialist courts, which by definition, should be sensitive to any specific issues and therefore capable of administering justice from an informed perspective.  For instance, a tax court should be better able to administer justice between parties to a taxation dispute than the ordinary court.

Disadvantages of Specialized Courts

While the above advantages have led to the establishment of specialist courts, there are however, some disadvantages.

  • The informal nature of proceedings may actually lead to injustice where principles of natural justice are compromised.
  • The jurisdiction of specialist courts is limited. In addition, there is always the fear that proceedings may be aside by the High Courts of lack of jurisdiction.
  • Some specialist courts involve some complex issues such that the ordinary person cannot utilize their services without the aid of specialists. An example would be the Income Tax Court and Patents Tribunal.

Examples of Specialized Courts

The Labour Court- Labour Court Act No. 17 OF 2004

The contract of employment is probably one of the most important contracts in the life of any person. The relationship between an employer and a worker is very much tilted against the latter, especially in view of the power of the employer to terminate the contract of employment (that is, the power of the fire the employee).

 

The law of Zimbabwe, like that of most other countries, realizes that the power of employers to hire and fire should be restricted. The law which governs employment of workers in Zimbabwe is mainly contained in the Labour Relations Act (chap 28:01). It is this act which creates special courts called the Labour Court, whose main function is to administer justice which is sensitive to the plight of workers. This court deals with labour dispute only. However, the Tribunal only acts as an appeal body and thus a worker cannot approach it directly. There are two main situations in which a worker may have access to the Labour Court.

 

Firstly, a person with a labour dispute or labour-related matter may refer the matter to the Ministry Of Labour, where it will be dealt with by a labour officer and thereafter by a senior labour relations officer. If a worker is not happy with the decision of a senior labour relations officer, an appeal will go to the Labour Court. This is the stage at which the Tribunal gets involved. The second situation in which the Tribunal may be approached arises in companies with registered codes of conduct.

 

A worker who has been dismissed or otherwise disciplined in terms of the registered code of conduct is allowed to appeal directly to the Labour Court.  Workers in companies with registered codes of conduct are generally no longer permitted to refer dispute of dismissals to the Ministry of Labour, and such, the Labour Court plays a key role in these matters.

 

In both cases, an appeal to the Court should be made within 14 days of the decision appealed against. The appeal requires the days of the decision appealed against. The appeal requires the appellant to fill an appropriate form, which may be obtained from the Tribunal itself or from a senior labour relation’s officer (if the appeal is against the latter’s decision). The form is easy to fill out and need not to be completed by a legal practitioner. The form may also be completed on behalf of a worker by a trade union official.

 

The Labour Court consists of a chairman who is a person qualified to be a high court judge, deputy chairman (who should be registered legal practitioner) and up to four other members, who may be either a legal practitioner or persons by one member sitting alone or two or more members. It is required by law to be informal in its proceedings so that it is not bound by the rigid rules of evidence, which may apply in ordinary courts. A worker, besides the represented herself/himself, may be represented by a member of the worker’s committee or trade union.

 

The Labour Court has been to some extent not effective in delivering timely justice due to it being heavily understaffed and hence most of the cases were not heard as quickly as desirable. There is currently a huge backlog of cases, which makes it difficult to have speedy justice.  A worker may have to wait for up to a year or even two years before his/her case is heard.

 

Due to the increase of labour issues, the Labour Court has since been decentralized to other parts of Zimbabwe. Labour Courts has been established in Gweru and Bulawayo. It is however, hoped this decentralization will continue and at least a Labour Court should be set in every province.

The Administrative Court

The Administrative Court is an all purposes specialist court which deals with a number of issues allocated to it by various pieces of legislation. It is set up in term of Administrative Court Act (Chapter 7:01) and consists of a president of the courts (who is either a former judge of the High court or Supreme court or is a person qualified for appointment as such or is a person who has been a magistrate for at least seven years) and assessors.

 

Various pieces of legislation allocated functions to the administrative court, such as, the Regional, Town and Country Planning Act (Chapter 29:12) which gives the court various functions to resolve disputes between local planning authorities and any persons aggrieved by the farmer’s proposed use of land or refusal to grant permits for development of land for certain purposes (see for instance sections 11, 38 and 41). The most common function of the administrative court, is however, being the water court for purposes of the Water Act (Chapter 20:22). This requires some more detailed explanation.

Administrative Court as the Water Court

Recent amendments have made this court to be heavily involved in land issues and media matters see the land acquisition act and AIPPA. There used to be a separate water court which regulated the use of public water among completing interests in Zimbabwe. From December 1979, all the functions of the old water court were taken over by the administrative court. However, it is still correct to refer to the administrative court as the water court whenever it is performing these functions. In terms of the Water Act, the administrative court is the only court to which a dispute concerning the use of public water may be referred to.

 

To understand the importance of the administrative court as a “water court” it is necessary to briefly outline the law governing rights to use of water in Zimbabwe. The law is largely contained in Water Act (chap 20:22). All water in Zimbabwe is divided into three groups: private water, public water, and underground water. Private water refers to water which rises naturally on any land and remains on the surface of the land without joining a public stream.  Public water refers to water found on or below the bed of a public stream, while underground water is all water which is beneath the surface the surface of the ground.

 

Private water is owned by the owner by the owner of the land on which it is found and that owner has the sole right to its exclusive use. He/she does not need to apply to court or get permission of any public authority to use the water for any purpose whatsoever. On the other hand, public water and underground water are legally owned by the president of Zimbabwe. No person has a legal right to use that water outside the provisions of the Water Act.

 

The act grants any person in Zimbabwe the right to use public water for cooking, drinking or washing without the need to get authorization from any court. Further, any person who owns land along which a public stream or river passes (such a person is technically called a ‘riparian owner’ and the land ‘riparian land’) has a right to use the public water in the stream or river for limited purposes in addition to the purposes of cooking include gardening, support of animal life and brick making.

 

Outside these two situations, the right to use public water for agricultural, electrical, and a host of other purposes requires the authorization of the administrative court. Any person can apply to the court to get a right to use public water for a stated purpose. Once the right is given, the holder of the right enjoys the use of the public water in preference to other persons.

The holder of the right becomes, for all intents and purposes, the “owner” of the water and may use it to the exclusion of others who have not been granted a right. It is precisely because most large-scale commercial farmers have water rights over most public water in Zimbabwe that small-scale commercial farmers (mainly blacks) have been unable to utilize water in some public streams for their agricultural activities. The power of granting right over a key natural resource such as water makes the administrative court strategically important.

 

An application for a water right may be lodged at any time with the registrar of the administrative court who will thereafter place it before the court. The latter is required to have regard, in considering the application, of the extent and nature of all land irrigable by the water concerned and may, in view of that consideration, impose conditions on use. Such conditions may place a limit on the amount of water to be used in order to leave room for other users.

 

More significantly, the court is required by the act to ensure that all persons who may be adversely affected by the grant of a water right have been given due notice of the application and if they so wish, have been allowed to make representations and arguments before the court. It is clear that the persons staying in the community through which a public stream passes have an interest in any rights which may be granted to any person over the public water. Such persons should therefore always be given an opportunity to make representations before the court on the application of any person to get a water right over the public water.

 

The problem, however, is that most ordinary people are unaware of applications being made before the courts and their implications, and the court itself does not seem to be conscious of the need to ensure that due notice is given to persons in local communities. Where an application is being made in relation to the public water to which a prior right has already been given, in the court is likely to refuse the application. Alternatively, it may grant the application on condition that compensation is paid to the prior holder of the right to the public water. This shows that it is difficult to get any new rights to Zimbabwe’s public water as most of the public water is already subject to rights granted before independence in terms of the old water act (chapter 160)

 

The current Water Act clearly makes the use of the available water only allocated to a few persons mainly white commercial farmers. The Administrative Court is largely ineffective in ensuring an equitable allocation of water resources given that most water has already been appropriated. The only protection given to communal people is power given to the Minister of Lands and Water Resources, in section 46 of the act to appoint a person who should represented the interest of communal people before the administrative court in matters affecting them.

 

While a person appearing before the Administrative Court may be represented by a legal practitioner, he/she may also appear in person and may also be represented by any other, as long as that person has been appointed in writing by the party with the case before the court. Thus, a party may be represented by a friend or any other person who is not legally qualified. Such a situation is not permissible in ordinary courts.

Appeals from the administrative court go to the Supreme Court of Zimbabwe.

Special Court For Income Tax Appeals

Taxation issues raise complicated problems. A taxpayer may be unhappy with an assessment made upon him and feel he/she has been asked to pay more tax than is legally due from him/her or may be aggrieved by the decision of the commissioner of taxes. The Income Tax Act (chapter 23:06) creates a special court to hear appeals from taxpayers unhappy with assessments made upon them, or who are dissatisfied with a decision of the commissioner.

 

The special court for income tax appeals is presided over by a president of the court, who is either a former judge of the high court or Supreme Court, or is a person qualified to be appointed a judge of the high court or Supreme Court. The president of the court sits with assessors whose role is purely advisory, with the decision of the court lying exclusively with the presiding judge.

 

The most common grounds for appeals are when the assessment to taxation is being queried on the basis of being excessive or where the taxpayer is arguing that no liability to tax arises at all. In such cases, it is legitimate to appeal to the special court for income tax appeals. It is important to note, however, that a taxpayer is entitled to appeal to the special court for income tax appeals. The advantage of choosing to appeal to the special court for income tax appeals is that a tax payer is entitled, before that court, to be represented by a person who is not a legal practitioner as long as the person has been appointed in writing. This enables a taxpayer to be represented by a tax expert who is not a lawyer.

 

A taxpayer making an appeal to the special court should do so by lodging a notice of appeal in writing to the special court within 21 days of receiving a notice from the commissioner confirming an assessment or decision, as the case may be. The 21 days may be extended by the special court on good causer shown. Within 60 days after giving notice of appeal, the taxpayer is required to state in detail his grounds of appeal. The commissioner is required within 60 days of receiving the taxpayer’s grounds of appeal, to state his/her case and transmit it to the special court.

 

The parties may call witnesses and lead such evidence, as they may deem relevant before the Supreme Court makes its decision. Special leave (permission) is required if the appeal is based on facts of a mixture of law and facts.

Fiscal Appeal Court

For the sake of completeness, mention should be made of the fiscal appeal court, another specialist tax court. This court hears appeals from decision of the commissioner of taxes in relation to sale tax and form decisions of the director of customs and excise in terms of the customs and excise act (chapter 23: 02). Thus the special court for income tax appeals hears appeals in respect of income tax issues only, while the fiscal appeals court hears appeals in respect of sales tax and customs duty only.

 

The fiscal appeal court is established in terms of the Fiscal Appeal Court Act (chapter 23:050. in practice, it deals more with complaints over duty assessment than the sales tax disputes. Like with other special courts, a party may be represented either by a legal practitioner or by some other a person who has been appointed in writing. Proceedings before the fiscal appeal are required to be as informal as possible. Appeals from this court go to the supreme court of Zimbabwe.

Local Courts on Customary Law

Customary law disputes may be referred to specially set courts which have been established to preserve the application of customary law in civil disputes. There are two types of local courts, namely (i) a primary court which is presided over by a headman or other person appointed by the minister of Justice and (ii) a community court, which is presided over by chief or other person appointed by minister of justice. Both courts are established in terms of the customary law and local court act (Chapter 7:05).

 

The main reason for the existence of these customary law courts is to provide a justice system to ordinary people in rural areas which is consistent with African custom and values. It is realized that most ordinary Zimbabwean regulate their lives in accordance with customary law to the extent that the legal ideas and institutions inherited from the system has preserved the authority of traditional leaders to adjudicate in civil disputes by customary law.

 

The following points have to be noted:

 

·       The local court can only decide on customary law and nothing else.

·       The local court is not to adjudicate certain disputes even though these disputes are governed by customary law. These disputes are the dissolution of a customary law marriage solemnized in terms of the Customary Marriages Act (chapter 5:07); determination of custody or guardianship of minors, determination of maintenance claims and determination of any rights in respect of land.

·       The value of a claim before a primary court should not exceed $1 500 and that before a community court should not exceed $100 million

·       A local court has jurisdiction to hear a case only if either the defendant is resident in ,local area of the court or the case took place within the local area (that is, the cause of action arose in the local area ) or the defendant has agreed that the court should have jurisdiction.

·       A party wishing to take a case to a local court simply has to approach the clerk of court concerned and be assisted with sending summons. The summons may be served on the other party by either the messenger of court or the police.

·       The procedure adopted in local courts is very informal and is determined by customary law. Lawyers are not permitted in local courts.

·       A judgment given by a local court is enforceable by first registering it with the magistrates’ court and thereafter enforcing it like any other magistrate court judgment. This means it can be enforced by execution of property, contempt of court proceedings, garnishee order or civil imprisonment.

·       An appeal from the primary court presided over by a headman goes to the community court presided over by a chief, and a further appeal may be made to the magistrate court and thereafter to the supreme court of Zimbabwe. A case can either start in the primary court or in the community court depending on the amount claimed (that is, if it is more than $50 million it starts in the community court).

·       Where the amount claimed is more than $100 million, the local courts have no jurisdiction and the case has to be initiated in the magistrate court.

Small Claims Court

A person who has a small claim to make against another is saved the inconveniency and delay of approaching the ordinary courts by the advice of the small claim courts. These courts are established in terms of the Small Claim Courts Act (Chapter 7:2). The power to establish a small claim court in any province is given to the Minister of Justice, Legal and Parliamentary Affairs. The important points about a small claim court are these:

 

·       The claim which be referred to a small claim court should not exceed $15 million section 159 of 2004.

·       A small claim court has no jurisdiction whatsoever to hear certain matter even if the claim does not exceed $2000. These matters are: claim involving customary law, claim for divorce or custody of the minor, maintenance claims (but it may hear a claim for arrear maintenance) interpretation of wills and claim for defamation, adultery or seduction.

·       Only natural persons can bring proceedings before claims court. Companies or other bodies can only be sued but cannot sue a small claim court.

·       Lawyers are not allowed to represent anyone in a small claim court.

·       For small claim court to have jurisdiction, the defendant has to be ether or should be carrying on business in the province or alternatively the cause of action should have arisen in the province. Outside the two situations, the court can only have jurisdiction if the defendant and does not object to jurisdiction.

·       To commence proceedings, the person wishing to institute proceedings (plaintiff) should first send a letter of demand to the defendant giving the latter 14 days to settle the claim. It is only after his demand is not honored that the plaintiff may request the clerk of the small claims court to issue summons against the defendant. The summons shall specify the claim and the date of the hearing and my be served on the defendant personally by the plaintiff or if the plaintiff or if the plaintiff pays the fee, by the messenger of court.

·       Any person bringing or defending proceedings before small claims courts entitled to be assisted in the preparation of his/her documents by a legal assistant attached to the small claim courts.

·       A judgment given by the small claim court is final and cannot be appealed against, except to take the proceedings on review by the high court.

·       Where the defendant has failed to satisfy the judgment given by the small claim court, the plaintiff (now judgment creditor) may apply to the clerk of court for the issue of a writ of execution against property. This is the only way of enforcing of a small claims court.

The Electoral Court and the Zimbabwe Electoral Commission

The Electoral court is set up in terms of the Electoral Act [Chapter 2:01] to solve and to deal with disputes arising out of elections, or to deal with election petitions. The conception of the Electoral Court commenced simultaneously with the conception of the Zimbabwe Electoral Commission in 2004 when the President opened Parliament in July 2004. The Zimbabwe Electoral Commission is supposed to be an independent electoral authority.  The proposed Zimbabwe Electoral Commission Act. [18, 2004] was conceived prior to the adoption of the SADC Electoral Charter [SADC Principles and Guidelines on Free and Fair Elections] in August 2004. The Zimbabwe Electoral Commission Act subsequently created the Electoral Court to deal with any matters arising from any election.

 

It would appear that this Commission was created only to give an independent and democratic face to Zimbabwe’s bad electoral record, as so many election petitions are still pending in the courts of law. Some election petitions have been pending in the courts for one full term of office of parliamentarians, hence delaying justice and nullifying the need for further litigation in such matters.

Maintenance Court

The Maintenance Court is a specialist Court established in terms of the Maintenance Act [Chapter 5:09]. In actual Fact it is the Magistrates Court Sitting as a maintenance Court. A magistrate is designated to hear and settle matters strictly related to Maintenance issues. The Act deals with the granting of Maintenance and the issuing of Maintenance Orders by the presiding Officer at Maintenance Court. In other words the Maintenance Act guides the procedure to be adopted by maintenance Courts in dealing with maintenance issues.

Children’s Court

The Children’s Court was formerly called the Juvenile Court. It is set up as under the magistrate’s court to deal specifically with matters pertaining to Children. The Children’s Act [Chapter 5:06] guides children’s Courts in matters pertaining to Children. Issues such as custody, and guardianship, sexual abuse of minors, minors detained for immoral purposes and the ill treatment of children inter alia are covered by this special court. Issues pertaining to Child Welfare by the state are also dealt with within this act and the fund for such is also set up in terms of this act.

Legal aid

Legal Aid is an integral part of any meaningful justice system, not all people in society can afford to pat the exorbitant and unaffordable fees for legal representation by professionals such as lawyers. In Zimbabwe, the situation is such that justice is only for the rich. Poor and indigent people are left in a difficult situation when trials are done without them having any representation. Legal ethics would demand that judicial officers take consideration of the fact that an accessed before them is unrepresented. In the majority of cases unrepresented people face a lot of prejudice than represented ones in that magistrates who are poorly remunerated and inundated with pending trials will always fast track trials in order to save time and to speed up the process. In so doing due care is given to their cases and a conviction is often secured against such accused persons even where there are mitigating circumstances. The other issue is the intimidating environments of our courts. There is also the aspect of ignorance of the law (which is no excuse in Zimbabwe). The law is not taught in schools except in Law School, therefore knowledge of the law is preserve of the lawyers alone. All these above stated aspects merit the need for legal aid in Zimbabwe.

 

The system of legal aid in Zimbabwe is not well developed. There are three categories of legal aid worth considering namely (1) civil court legal aid, (2) criminal court legal aid and (3) legal aid from private institutions.

Civil Court Legal Aid

In both the magistrate courts and high court there exists a system for the assistance of indigent persons. In the magistrates court, the system is known as the pro deo system and is governed by the magistrates court (civil) rules, 1980, Order 5. In terms of the order 5, a peon desiring to sue or defend as a “pauper’ may apply to court for legal aid. The courts has to be satisfied that (i) the applicant has a prima – facie right of action or defense and (ii) the applicant has no means sufficient to pay the court fees and messenger’s charges. It is after being satisfied as to these two aspects that the court may order that a lawyer be appointed to act for the applicant has for the applicant. The requirement that the court be satisfied that the applicant has no means to pay court fees and messenger’s charges means that only very poor persons qualify for this assistance. Further, the court is not obliged to order the appointment of a lawyer – it may instead simply order that the pleading be served free of charge.

 

In the high court, the system is called the informa pauperis system. It is governed by the high court rules, 19971, order 4. In terms of order 44, a person wishing to bring or defend proceedings informa pauperis may apply to the registrar if he/she is a person whose assets are less than a specified amount (currently $1000), excluding household possessions. If the registrar is satisfied that the applicant prima facie qualifies, he/she is requires to nominate a legal practitioner to whom to refer the applicant. The legal practitioner is required to investigate the means of the applicant.

Criminal Court Legal Aid

The constitution of Zimbabwe does not enshrine a right aid for accused person. On the contrary, it provides in section 18(3) (d) that “every person who is charged with criminal offence shall be permitted to defend himself in person or, save in proceedings before local court, at his own expenses a legal representative of his own choice”.

 

This is reiterated by section 191 (a) of the criminal procedure and evidence act, 65 of the magistrates court act and 51 of the high court act. However, there is some statutory provision for legal aid in criminal matters. Before the passing of the legal aid act, 1996 (act no 18 of 1996) the governing legislation was the legal assistance and representation act (chapter 9:13). In terms of that act, a criminal court could order that a legal practitioner be assigned to represent an accused where (i) it is desirable in the interests of justice and (ii) the means of the accused are insufficient to obtain the services of a lawyer. The attorney general also had the power in the above circumstances to certify that an accused be represented. The act did not make clear the factors which determined the “interests of justice” warranting legal aid.

 

The legal aid act, 1996 repeals the legal assistance and representation act and creates a legal aid fund (section 14) and legal aid directorate (section3) the act now covers legal aid for both civil criminal matters. It entitled any person to apply for legal aid (section 7) and eligibility is determined by3 factors, namely: (i) insufficient means, (ii) reasonable grounds of success in the case in court and (iii) need of the services provided by the act. Legal aid may also be obtained at the A-G or a criminal court. The main form of legal is by providing a legal practitioner or law officer to represent the indigent person.

 

A new innovation in the act is that practitioners who refuse to be engaged under the act may have their right of audience in the courts removed or restricted (section26).

Legal Aid by Private Institutions

A variety of private institutions provide legal aid. The most well know include the Legal Resources Foundation, Catholic Commission for Justice and Peace, Zimbabwe Council of Churches (Justice an Peace Department) and Msasa Project.

Zimbabwe Lawyers for Human Rights has also been at the fore in Zimbabwe in terms of the provision of legal aid in cases involving human rights abuses. This has proven to be very effective in ensuring that fundamental human rights are protected and respected by all state organs. Apart from offering free legal aid in human rights cases the organization also offers human rights education around Zimbabwe and this is a form of legal aid often ignored by some, but is perhaps the first step to any form of legal aid.

 

The problem faced by private institutions in Zimbabwe is that they mainly rely on external funding from donor organizations. The government does not support them. In many cases these determined private institutions are under capacitated in terms of manpower and resources required for them to effectively avail legal aid to all the poor and indigent people of Zimbabwe who find themselves prejudiced by the law’s technicalities.

 

There is an exigent and imminent need for the increasing capacity of organizations that offer free legal services to the poor. Such capacity building refers to the provision of funds and resources such as funds and manpower. It is discouraging and unattractive to work for a legal aid services institution as the remuneration is unattractive for most legal professionals. PRO DEO and IN FORMA PAUPERIS types of legal aid are thus rare, as lawyers scramble for the rich paying clients who can afford their services.

 

The government must take centre stage in providing legal aid as part of its social responsibility. There is need for it to properly invest in Legal Aid and to create robust institutions that provide such. Currently the existing forms of Legal Aid merely halfhearted attempts by the government to create a semblance of legal Aid. Truly speaking, the current government focuses more on political projects that either ensure their stay in power or generate revenue for the state. Legal Aid is thus neglected.

 

International Law and Its Application in Zimbabwe

Section 111B of the Constitution of Zimbabwe states that any convention, treaty or agreement acceded to, concluded, concluded or executed by or under the authority of the president with foreign states or organizations;

 

a)    Is subject to approval by parliament and

b)    Shall not form part of our law unless it has been incorporated into the law by or under an act of parliament.

 

This simply means that Zimbabwe is not bound by international unless the law is legislated by parliament into the local statutes of Zimbabwe. A mere signature on any Treaty or Convention is not enough to give binding effect to that Convention or Treaty in Zimbabwe. That is the dilemma in Zimbabwe right now. The government refuses to be bound by international laws, Protocols, Conventions or Treaties as they do not form part of our laws. This has caused headaches and difficulty for lawyers trying to argue their cases on the basis of International Treaties and Conventions or Protocols despite the fact that Zimbabwe might be party and signatory to such. The Judiciary finds it easy to dismiss such cases on the basis of Section 111B.

 

 

The land cases brought under the SADC Tribunal reflects how far Zimbabwe is willing to be bound by a judgment of any Tribunal established under any treaty signed by it. One of the cases that have claimed international spotlight is the Campbell case. [[39]]

 

The facts of the case were as follows: the government of Zimbabwe through the Ministry of Lands (acquiring authority) showed interest in compulsorily acquiring the farm known as Mount Carmel of Railway 19, situated in the District of Hartley measuring 1200.6484 hectares for resettlement purposes under the provisions of the Land Acquisition Act in 1997 (the Act). On the 28th of November 1997 the acquiring authority served a preliminary notice of intention to acquire the land for resettlement purposes in terms of subs (1) of s 5 of the Act. The preliminary notice was published in the Gazette and the Herald newspaper and a written objection to the proposed acquisition was lodged with the acquiring authority on the ground that the acquisition was not reasonably necessary for utilisation of the land for settlement for agricultural purposes. This preliminary notice was withdrawn by the acquiring authority on the 15th of March 1998.

 

The acquiring authority served another preliminary notice on the 22nd of June of 2001 on the applicants. The proposed acquisition of the land was opposed on the same ground and an order for compulsory acquisition of the land was nonetheless made by the acquiring authority in terms of subs (1) of s 8 of the Act on the 4th of April 2002. This order was confirmed by the Administrative Court on the 10th of May 2002. However, this same notice was declared invalid and set aside by the High Court.

 

This did not hinder the acquiring authority to issue a fresh notice for intention to acquire the same land on the 23rd of July 2004 and a written objection to the proposed acquisition was served on the acquiring authority on the same day. No order of acquisition was made in terms of subs (1) of s 8 of the Act, nor was an application made by the acquiring authority to the Administrative Court for an order authorising the acquisition.

 

To stop what was considered obstructive litigation and secure finality in cases of compulsory acquisition of agricultural land for public purposes, the Legislature enacted the Constitution of Zimbabwe Amendment (No.  17) Act, 2005 on 14 September 2005. The Amendment introduced s16B which provided that all agricultural land that was identified on or before or after the 8th July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], for resettlement purposes, its title automatically vests in the State. It also ousted the powers of any Court in as far as challenging the acquisition of land was concerned except if it compensation for developments effected on the acquired land. Consequently the farm (Mount Camel) belonging to applicant was acquired by the State on the appointed day in terms of s 16B (2)(a)(i) of the Constitution by virtue of the preliminary notice published in the Gazette on the 23rd of July 2004.

 

It on these bases that the Applicant approached the Supreme Court of Zimbabwe, contending that the enactment of Amendment (No.  17) Act, 2005, which introduced s 16B into the Constitution, and the acquisition of agricultural land belonging to the first applicant, violated the Declaration of Rights in relation to the applicants contained in ss 11, 16(1) (the right not to have private property compulsorily acquired without the authority of a law), 18(1) (the right to protection of law), 18(9) (the right to a fair hearing and determination of civil rights or obligations by a court of law) and 23(1) (the right not to be treated in a discriminatory manner on the grounds of race and colour).

 

The Supreme Court threw out the application on the basis that s16B of the Constitution was a legitimate exercise of the legislative power to determine the conditions under which the power inherent in the State to compulsorily acquire private property in agricultural land for public purposes can be validly exercised. Consequently, the Applicant’s right to property was held not to have been infringed.

 

The Applicants brought an application to the SADC Tribunal challenging the actions of Zimbabwean Government as being contrary to its obligations of adhering to principles of human rights, democracy and rule of law in its conduct and of not discriminate any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit. In particular, it challenged Amendment No 17 as a violation of these provisions.

The SADC Tribunal held and declared that:

(1)    by unanimity, the Respondent is in breach of its obligations under Article 4 (c) and, by a majority of four to one, the Respondents in breach of its obligations under Article  6 (2) of the Treaty;

(2)    by unanimity, Amendment 17 is in breach of Article 4 (c) and, by a majority of four to one, Amendment 17 is in breach of Article 6 (2) of the Treaty; 

(3)    by unanimity, the Respondent is directed to take all necessary measures, through its agents, to protect the possession, occupation and ownership of the lands of the Applicants, except for Christopher Mellish Jarrett, Tengwe Estates (Pvt) Ltd., and France Farm (Pvt) Ltd., that have already been evicted from their lands, and to take all appropriate measures to ensure that no action is taken, pursuant to Amendment 17, directly or indirectly, whether by its agents or by others, to evict from, or interfere with, the peaceful residence on, and of those farms by, the Applicants, and

(4)    by unanimity, the Respondent is directed to pay fair compensation, on or before 30 June 2009, to the three Applicants, namely, Christopher Mellish Jarrett, Tengwe Estates (Pvt) Ltd., and Franch Farm (Pvt) Ltd.

To this judgment, the government publicly reacted in a negative way and declared through the Minister of Justice that any decision that the (SADC) Tribunal may have or may make in future against the Republic of Zimbabwe is null and void”. In other words the Government seeks to withdraw from the jurisdiction on the SADC Tribunal on the basis that it did not ratify the Protocol which sets up the SADC Tribunal.

 

With respect, it is averred that the Tribunal Zimbabwe had [and still has] jurisdiction to hear the land case. This is based on the following facts: first, Zimbabwe is a signatory to the SADC Treaty; secondly it is bound to the Protocol despite not ratifying it; thirdly it conceded to the SADC Tribunal’s jurisdiction; and lastly the SADC Tribunal has held that Zimbabwe is subject to its jurisdiction. In the first instance, Zimbabwe became a SADC member by virtue of entering into a SADC Treaty at Windhoek, Namibia, on the 17th of August 1992 and the Treaty was duly ratified thereafter by the Parliament on the 17th of November 1992. The Treaty then subsequently came into force on the 30th of September 1993. Accordingly Zimbabwe is bound by this treaty by virtue of Article 26 of the Vienna Convention on the Law of Treaties of 1969, which provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.

Secondly, Zimbabwe is bound by the judgment of the Tribunal by virtue of art 16 (2) of the Protocol to the SADC Tribunal which provides that the Protocol constitutes an integral part of the Treaty. Consequently the said provision renders ratification unnecessary, meaning once the Treaty has been ratified the need for a separate ratification of the Protocol falls off. In any event, the Government of Zimbabwe had conceded to the SADC Tribunal’s jurisdiction. This was reflected through the following acts:[†]

1)     During the first hearing of the Campbell proceedings before the Tribunal, the government of Zimbabwe made a formal concession of the Tribunal’s jurisdiction through Zimbabwe’s Deputy Attorney-General, who represented it in the proceedings, in answer to a question by Justice Tshosa, a member of the Tribunal. 

2)    The concession was repeated in an affidavit filed in that matter on behalf of the Department of Lands, and affirmed in the government’s continued appearances and submission of argument. 

3)    The High Commissioner for Zimbabwe herself attended the proceedings, and was furnished by the government as the service address and designated agent under the Protocol.

It is on these basis that it is submitted that the SADC Tribunal had jurisdiction over the Campbell case and outside the Campbell case, the Tribunal still has jurisdiction by virtue of Zimbabwe having signed and ratified the SADC Treaty and the operation of art 16 (2) of the Protocol to the SADC Tribunal. 

 

However it is apt to also state that Customary International Law is part of Zimbabwe’s law as it is erga omnes.  This position was first made precedent by Waddington J when he stated that “there is no doubt that customary international law is part of the law of this country” in the case of Barker McComarc (Pvt) Ltd v. Government of Kenya [[40]].

 

There is need for Constitutional reform in this regard as changing the position of Section s11B and it is hoped that the current constitution making process will take into account the need to incorporate international law in our domestic law without the need to get approval from the Parliament or incorporation through an Act of Parliament. This position will not be akin to Zimbabwe only as some other countries such as South Africa have adopted the same in its Constitution. In any event, this is one of the ways that the rights of citizens can be protected and promoted. 

 

Law Reports

The Law Reports of Zimbabwe are the official compilation of cases or precedents in Zimbabwe. Currently in Zimbabwe there is only one set of law reports under the title “The Zimbabwe Law Reports.” Zimbabwe law Reports currently published by the Legal Resources Foundation a non-profit making non-governmental organization in co-operation with the Ministry of Justice Legal and Parliamentary Affairs. The law reports are compiled by editors who have high experience in legal issues and they act in consultation with Judges of the Superior Courts.

 

Zimbabwe Law Reports consolidate prominent cases that are of high prominence in any legal aspect or legal question. Only cases which settle a legal position are considered into the law reports. Usually these are cases tried in the Supreme Court or the High Court of Zimbabwe. Zimbabwe Law Reports can come in either one or two volumes, depending on the year and its legal events. A year may have relatively few prominent cases being tried in the Superior courts, thus there will be few cases reported in one volume for that particular year.

 

The mode of citation for Law Reports usually starts with the words The Zimbabwe Law Reports, followed by the year, which reflects that the cases covered are only judgments provided for that particular year or time period. The year is followed by the volume, which is merely the edition of the law reports. For example Zimbabwe Law Reports 2002 Part (1).

 

Currently the law reports of Zimbabwe end at the 2002 edition. This is due to lack of finance on the part of the Legal Resources Foundation. Another problem is the lack of investment in legal resources by the state. Some judgments that do not make it into the law reports are found in a compilation of unreported judgments called CYCLOSTYLED Judgments. These are cases bearing legal authority and they do form precedent, however for some reason they are not incorporated into the official law reports.

Bulletin of Zimbabwean Law

There is only one legal Bulletin in Zimbabwe, entitled The Bulletin of Zimbabwean Law. This is published by the Legal Resources Foundation a charitable organization. The Bulletin comes in Two Issuers per year and it acts as a caption and a commentary of legal developments occurring that particular year. The Bulletin of Zimbabwean Law is intended to provide a digest of recent legislation, judicial decisions and other legal developments in Zimbabwe in a form that will be of use to practicing lawyers, academics, students and anyone else who wishes to keep abreast with developments in Zimbabwean Law. The developments are exposed through cases to which judgments have been handed down. The bulletin seeks to keep the public and the legal profession abreast with developments of the law such as Family Law, Criminal Law, and Administrative Law etc. etc.

Zimbabwe Human Rights Bulletin

The Zimbabwe Human Rights Bulletin is a publication by a non governmental organization; Zimbabwe Lawyers for Human Rights. It provides a survey of the Legislation that has an impact on Human Rights in Zimbabwe. It also touches on social, political and economic issues that impact and impinge on human rights in Zimbabwe. In a country that is on notorious internationally for its bad human rights record, the Bulletin is the only source of exposing and documenting such abuses for posterity.

 

The Bulletin provides invaluable, thoroughly researched, evidence of the state of human rights in Zimbabwe. Such evidence is all too rarely compiled in such a systematic and comprehensive way. The Bulletin is accessible to non-lawyers and should be read by anyone interested in both Zimbabwe and the protection of human rights.

Government Gazettes

The Government Gazettes of Zimbabwe is a newspaper publication describing new laws and government decisions. It is the official medium within which the government announces the passing of legislation and it is through gazettes that amendments to legislation are made known to the public.

 

The government’s decisions are published in these gazettes. Decisions such as the:

·       Issuance and invitations of state tenders

·       Notices of appointments of personnel to public offices.

·       Changes of name or Notarial Deeds are also published through Government gazettes

·       Title Deeds, Deeds of Transfer are also made public in this method.

·       Licenses issued and licenses withdrawn and liquidation of Companies.

·       Advertisements of Government Publications on sale

·       Auction and sale Public Property

·       Notices to Creditors and Debtors

 

Statutory instruments are also published in or alongside Government gazettes. Proclamations, which in effect Presidential decrees are made known to the public through gazettes.

 

In Zimbabwe, government gazettes are published by the government Printers at the Government Printers Office (GPO) Harare. Gazettes are published in Volumes, with a volume number and the year of publication, but there is no specific time of  release, they are released anytime the need arises.

 

Codes

The only Law Code in Zimbabwe is the Criminal Law (Codification and Reform) Act.  This act consolidates all the Criminal law and its aspects such as defenses and requirements for Criminal liability in Zimbabwe. This Code ousts the application of Roman Dutch Criminal Law in certain respects where it states so. The Constitutionality of this Code is yet to be tested as a majority feel that it defies the scope and import of Section 82 of the Constitution of Zimbabwe. Section 82 of the Constitution states that Roman Dutch Common Criminal Law shall apply in Zimbabwe. However, Section 3 of the Code states that it shall not apply. Unless there is an amendment to Section 82 of the Constitution there will always be disputes as to the Constitutionality of the Code. However the Code is currently applying in Zimbabwe since the 22nd of June 2005.

 

Law Schools [[41]]

There used to be only  one law school in Zimbabwe, the University of Zimbabwe Law School. The University offers a Bachelor of Laws Honours Degree, which is studied over a four year period. The Department of Law was established in March 1965. The study of Law at the university is rigorous and comprehensive. Entry into the law requires the highest grades at Advanced Level. The syllabi are worked out in consultation with the Council for Legal Education and Law Society of Zimbabwe, organs that were established to maintain standards in the practice of law. In consultation with these organs, the Faculty is committed to upgrading and revising its syllabi to ensure that the graduates it produces are fully equipped to deal with the complex legal, social, economic and political issues that mark today's ever changing society. Students are required to undergo periods of practical attachments with the courts and legal firms.

 

However, in 2005 another law school was opened in Gweru, at Midlands State University. This University, offers a Bachelor of Laws Honours Degree which is studied over a period of five years. This period includes a 10-12 months attachment or internship; i.e. 6 months at the Magistrates’ Courts and the last 4-6 months at a legal firm of the internee’s choice. The Curriculum is to a greater extent shaped by the Council for Legal Education and though it does not differs materially from that of the University of Zimbabwe; its curriculum is more internationally inclined. In particular, the following courses are offered: Public International Law and International Humanitarian Law, whereas International Trade Law and International Economics Law are offered on the availability of lecturers.      

 

The new law school released its first crop of 10 graduates on the 5th of December 2010. However, these graduates are yet to be admitted into any law firm because the Statutory Instrument which exempts them from writing professional examinations so that they can be registered as legal practitioners was recently enacted.[[42]]

 

The Judicial College of Zimbabwe is also another institution offering legal studies. The Judicial College is established by the Ministry of Justice Legal and Parliamentary affairs and it is administered by same. The College is meant to train Magistrates, Prosecutors and Judicial officers such as clerks of court.

 

Zimbabwe Lawyers for Human Rights [[43]]

Zimbabwe Lawyers for Human Rights (ZLHR) is a not for profit human rights organization whose core objective is to foster a culture of human rights in Zimbabwe as well as encourage the growth and strengthening of human rights at all levels of Zimbabwean society through observance of the rule of law. ZLHR is committed to upholding respect for the rule of law and the unimpeded administration of justice, free and fair elections, the free flow of information and the protection of constitutional rights and freedoms in Zimbabwe and the surrounding region. It keeps these values central to its programming activities. The organization works in conjunction with partner organizations that deal in human rights and its promotion. The organization is perhaps the leading one terms of human rights issues as it offers free protection to human rights victims through free litigation. It also carries out mass public education programmes and it is involved in the protection and promotion of Children’s Rights through an initiative called the Rights Club.

 

The Law Society of Zimbabwe

The Law Society of Zimbabwe is a regulating body of the legal profession in Zimbabwe. It has statutory recognition and is established under the Legal Practitioners Act. The Law Society of Zimbabwe (LSZ) was formed in 1981 to regulate the practice of law by registered legal practitioners in Zimbabwe. It is an autonomous and self regulating body. With an independent and competent legal profession, the LSZ provides a basis for an independent judiciary in Zimbabwe and the LSZ is acutely aware of this important responsibility that it has to the country. The LSZ is committed to the upholding of the following objectives: promote the study of the law, to contribute, undertake or make recommendations on legal training, control of admission of new members to the profession, maintain a register of members, regulate the profession in respect of continuing training, discipline and trust accounts, represent the profession and articulate its views on various issues, promote justice, defend human rights, rule of law and the independence of judiciary and generally control and manage the legal profession.

 

Legal Resources Foundation [[44]]

The Legal Resources Foundation (LRF) is an autonomous, charitable & educational trust, established by trust deed and registered under the Welfare Organizations Act [93/67] in 1984 (now Private Voluntary Organizations Act [Chapter 17:05).

 

It was established to meet an expressed need to improve the accessibility of legal and information services to all sections of the population. Programmes undertaken by the LRF are based on the understanding that human rights in Zimbabwe can be advanced by facilitating access to the legal system.

 

Its mission is to encourage a democratic environment in Zimbabwe based on the rule of law and respect for human rights by extending legal information and legal assistance to Zimbabweans. It facilitates the advancement and development of the community through legal knowledge and to strengthen and support institutions established to promote and protect individual and group rights.

 



[†]Legal opinion re Zimbabwe and the jurisdiction of the SADC Tribunal  by J.J. GAUNTLETT SC (former Chairman of the General Council of the Bar, South Africa); Prof J.L. JOWELL QC
(member of Blackstone Chambers and former law dean, University College London and Vice-Provost) and F.B. PELSER. (3 September 2009); Para 12.
 

 



[[1]] See the Criminal Law (Codification And Reform) Act [Chapter 9:23] act 24 of 2004

[[2]] Section 3 of the Constitution reads as follows;

This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this     Constitution that other law shall, to the extent of the inconsistency, be void.

[[3]] See John Reid Rowland, ‘Constitutional History of Southern Rhodesia: An Outline,’ or Claire Palley, ‘The Constitutional History and Law of Southern Rhodesia,’ 1888-1965 Clarendon Pres, Oxford, 1966.

[[4]] Stands for United African National Congress.

[[5]] The Lancaster House Constitutional Conference was organized by Lord Carrington at Lancaster House in London to quell the continued Political Turmoil that continued as liberation movements continued to fight for total independence from British Rule. At that time ZANU and ZAPU refused to acknowledge the government of Bishop Abel Muzorewa, which they called a puppet government. The purpose of the Conference was to arrive at a constitutional settlement that would bring about genuine majority rule in an independent Zimbabwe.

[[6]]  See the Criminal Law (Codification And Reform) Act [Chapter 9:23] act 24 of 2004

[[7]] The change was brought in through Constitution of Zimbabwe Amendment (No. 6) Act of  1987.

[[8]] Section 89 of the Constitution of Zimbabwe reads as follows;

89 Law to be administered

Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe the force of law.

[[9]] Section 3 of the Customary Law and Local Courts Act details the circumstances under which Customary law is to apply and reads as follows;

Application of customary law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires—

                  (a)           customary law shall apply in any civil case where—

                  (i)            the parties have expressly agreed that it should apply; or

                  (ii)          regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed it should apply; or

                  (iii)        regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

                  (b)           the general law of Zimbabwe shall apply in all other cases.

(2) For the purposes of paragraph (a) of subsection (1)—

“surrounding circumstances”, in relation to a case, shall, without limiting the expression, include—

                  (a)           the mode of life of the parties;

                  (b)           the subject matter of the case;

                  (c)            the understanding by the parties of the provisions of customary law or the general law of Zimbabwe, as the case may be, which apply to the case;

                  (d)           the relative closeness of the case and the parties to the customary law or the general law of Zimbabwe, as the case may be.

 

[[10]] Section 3 of the Constitution of Zimbabwe reads thus;

Supreme law

This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.

[[11]] S7(1) of the Constitution as amended

[[12]] For Zimbabwe`s Human Rights Record Visit the following websites;

www.zlhr.org.zw

http://www.hrw.org

[[13]] Associated Newspapers of Zimbabwe

[[14]] 1998 (2) BCLR 224 (ZS)

[[15]] Amendment (NO. 19) ACT 2008, ACT NO. 1 OF 2009

[[16]] See Pfumorodze J (2010) Recent legal developments in Zimbabwe, UB Law Journal, Vol. 11, pp.185-189.

[[17]] S100E of the Constitution as amended

[[18]] S100G of the Constitution as amended

[[19]] S100M of the Constitution as amended

[[20]]Members of the ZMC were sworn in by the President on 31 March 2010

[[21]] Section 100P of the Constitution

[[22]] S34 of the Constitution as amended

[[23]] Such a contribution will likely to never see the sun because the President is known for being vocal against gays and lesbians and regards them as being worse than being dogs.

[[24]]"Appointed day" means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17) Act, 2005, that is the 14th of September, 2005,  the date on which the Constitution of Zimbabwe
Amendment (No. 17) Act, 2005 (No. 5 of 2005) was published in the Gazette]. 

[[25]] Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, Land Reform and Resettlement (124/06) [2008] ZWSC 1 (22 January 2008) Judgment No. SC 49/07 Const. Application No. 124/06

[[26]] Chorzow Factory case (1928 PICJ Series A No 17, Order 13 September 1928)

[[27]]Funnerkotter and Others v Republic of Zimbabwe ICSID Case No ARB/05/6

[[28]] S29 of the Constitution as amended

[[29]] s17 of Act 11 of 2007 – Amendment No. 18

[[30]] S90 of Constitution as amended

[[31]] S3 (1) of the Domestic Violence Act

[[32]] S3 (2) (d) (i)-(ii) of the Domestic Violence Act

[[33]] S6 of the Domestic Violence Act

[[34]] Derek Matyszak (2010). Everything You Ever Wanted To Know (And Then Some) About Zimbabwe's Indigenisation And Economic Empowerment Legislation But (Quite Rightly) Were Too Afraid To Ask. Research and Advocacy Unit, Zimbabwe. See also Zimbabwe Lawyers for Human Rights, submissions to the Parliamentary Portfolio Committee on Budget, Finance, Economic Planning and Investment and Parliament's Legal Committee, which termed the definition as “… too vague and uncertain… that it can encompass groups other than black Zimbabweans who were disadvantaged before 18th April 1980” 

[[35]] For compilation of information in this section, reliance was mainly had to a publication by the International Bar Association entitled The State of Justice in Zimbabwe of December 2004. The compilation by the IBA was done at the height of the government’s chaotic land reform process, which led to the non-observance of the rule of law after thorough investigation and wide consultations with all sectors relating to the law.

[[36]]The Land Acquisition Act had empowered the Administrative by virtue of s7 to authorize or confirm acquisition of land to which there has been an objection by the owner.

[[37]] S16B (3) (b) of the Constitution. See also Campbell v Minister of Lands case

[[38]] After Lecture notes from Dr. Lovemore Madhuku (UZ Law Faculty, Public Law Department)

[[39]] Michael Campbell & 78 Others v Republic of Zimbabwe Case No. SADC (T) 03/2009

[[40]] 1983 (4) SA 817 (ZS)

[[42]] Statutory Instrument 47/2011 Gazetted on the 1st of April 2011

[[43]] http://www.zlhr.org.zw/about/index.htm