UPDATE: The Law in Zimbabwe

 

By Otto Saki and Tatenda Chiware

Update by Jimcall Pfumorodze and Emma Chitsove

 

Jimcall Pfumorodze is a Senior 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 a 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. She is currently undertaking studies for the Masters of Law in International Trade and Investment Law with University of Pretoria.

 

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 , a former law student at the University of Zimbabwe, and a student intern with Zimbabwe Lawyers for Human Rights has held the position of Secretary for Legal and Academic affairs at the University of Zimbabwe and of a Commissioner with the Catholic Commission for Peace and Justice.

 

Published April 2014

(Previously updated by Jimcall Pfumorodze and Emma Chitsov0e in July 2011)

See the Archive Version!

 

Table of Contents

1.      Introduction

2.      Historical Overview

3.      Sources of Zimbabwean Law

3.1. The Legislature

3.2.   Precedent / Case law / Court Decisions

3.3.   Customary Law

3.4.   Common Law

3.5.   Authoritative texts

4.      Constitution of Zimbabwe

4.1. Chapter 3: Citizenship

4.2.   Citizenship & Immigration Board

4.3.   Chapter 4: The Declaration of Rights

4.3.1.      Civil and Political Rights

4.3.2.      Socio-Economic Rights

4.3.3.      Group Rights

4.4.   Chapter 5: The Executive

4.5.   Chapter 6 The Legislature

5.      The Justice System in Zimbabwe

5.1. The Constitution and the Judiciary

5.2.   Independence of the Judiciary

5.2.1.      Appointment of Judges

5.2.2.      Judicial Service Commission

5.2.3.      Judicial tenure and remuneration

5.2.4.      Removal of judge from office

5.3.   The Constitutional Court

5.4.   The Supreme Court

5.5.   The High Court

5.6.   The Labour Court

5.7.   The Administrative Court

5.8.   Magistrates’ Court

5.9.   Specialized Courts in Zimbabwe

5.9.1.      Administrative Court as the Water Court         

5.9.2.      Special Court for Income Tax Appeals

5.9.3.      Fiscal Appeal Court

5.9.4.      Local Courts on Customary Law

5.9.5.      Small Claims Court

5.9.6.      The Electoral Court

5.9.7.      Maintenance Court

5.9.8.      Children’s Court

5.9.9.      Advantages of Specialist Courts

5.9.10.   Disadvantages of Specialist Courts

5.10.                 The System for the Administration of the Courts

5.11.                 National Prosecution Authority

6.      The Legal Profession  

7.      Legal aid

7.1. Civil Court Legal Aid

7.2.   Criminal Court Legal Aid

7.3.   Legal Aid by Private Institutions

8.      International Law and Its Application in Zimbabwe

9.      Law Reports

9.1. Bulletin of Zimbabwean Law

9.2.   Zimbabwe Human Rights Bulletin

9.3.   Government Gazettes

10.   Codes

11.    Law Schools

12.   The Law Society of Zimbabwe

13.   Legal Resources Foundation

 

1.      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. The 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 is 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 for any other Legislation [ [2] ] .

 

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, a 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.  These traditional laws were unwritten 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 had the power to issue royal decrees and these would become law.  Traditional laws were enforced by the king or chiefs warriors, or indunas.

 

The 29 October 1889 marked the commencement of formal colonial takeover for Zimbabwe.  On this date, a company known as the British South Africa Company (BSAC) was given a Charter by the British government.  This 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 may 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 Crown 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 has however since been repealed and replaced in 2013 by a new homegrown Constitution.

 

3.      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 by the Criminal Law [Codification and Reform] Act which came into effect on the 1st of July 2006.    Of interest is that, this Code criminalises activities like the d eliberate infection of another person with a sexually transmitted disease and HIV. [ [7] ] Sexual-transmitted diseases are defined to include diseases like syphilis, gonorrhea, herpes, and all other forms of sexually transmitted diseases.

 

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.  However, this has not stopped people from approaching the Courts to seeking relief, mostly the civil courts.

 

The following are sources of Zimbabwean law:

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

3.1.   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 by virtue of s116 and s117. The legislature derives its authority from the people, vested in and exercised in accordance with the provisions of the Constitution. [ [8] ]

 

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 National Assembly and the Senate. Legislation brought through the National Assembly has to be scrutinized by the Senate before the President assents to it. Both houses have the power to initiate, prepare, consider and reject legislation. [ [9]

 

 

The method of passing legislation is entrenched in the Fifth Schedule 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.

 

However, in terms of s134 of the Constitution the statutory instruments inter alia must not infringe or limit the rights and freedoms set in the Constitution and must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.

3.2.   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.

3.3.   Customary Law

The customary law of Zimbabwe is generally unwritten.  Customary law refers to the 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. The new Constitution explicitly recognizes customary law in various provisions. In its definition section, law is defined to include any unwritten law in force in Zimbabwe, including customary law. It further recognises the role of the traditional leaders in resolving disputes amongst people in their communities in accordance with customary law. [ [10] ] Most important is the aspect of establishment of customary law courts whose jurisdiction consists primarily in the application of customary law. [ [11] ] Section 176 of the Constitution bestows power on Co nstitutional, Supreme and High courts to develop customary law taking into account the interests of justice and the provisions of the Constitution.  Other Legislation, such as the: Customary Marriages Act; Administration of 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. [ [12] ] It does not cover criminal law by virtue of section 193 of the Constitution and it governs some areas of Marriage, Inheritance and Guardianship only.

3.4.   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 per the provisions of section 192 of the Constitution of Zimbabwe. This provision reads that the law to be administered by the courts of Zimbabwe is the law that was in force on the effective date, as subsequently modified . The law that was in force includes Roman-Dutch Law as applied at the Cape of Good Hope on the 10th of June 1891. 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.

 

Common law however, does not apply on criminal matters this is by virtue of section 3 of the Criminal Law (Codification and Reform) Act which unequivocally states that’s Roman Dutch Criminal Law is inapplicable in all criminal matters in Zimbabwe.  Like in the case of the development of customary law, the Constitution bestows power on Co nstitutional, Supreme and High courts to develop common law taking into account the interests of justice and the Constitutional provisions. [ [13] ]

3.5.   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.

4.      Constitution of Zimbabwe

The constitution of Zimbabwe is the Supreme law of the land and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Its supremacy stretches to the extent of binding every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level and expect fulfillment of imposed obligations [ [14] ] .Therefore Zimbabwe has Constitutional Supremacy instead of parliamentary Supremacy.

 

The current constitution of Zimbabwe is a home grown Constitution which process took close to three years. It was ushered through Constitution of Zimbabwe Amendment (No. 20) Act, 2013. The Constitution is a Schedule of section 2 to this Act. Unlike its predecessor, the new Constitution is detailed; elaborative and exhaustive with a total of 345 sections; 18 Chapters and 6 Schedules. The constitution is the parent Act of every other Legislation.  Therefore all Acts of parliament subordinate to it must be intra vire s the constitution or within the confines of constitutionality.

 

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

 

4.1.   Chapters 3  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 3 deals with Citizenship and maintains that citizenship in Zimbabwe is by birth, descent or registration. Dual citizenship is allowed to those who are citizens by birth. In terms of the Constitution, citizens have both rights and duties. They have a right to be protected by the State wherever they are and to receive passports, travelling documents and birth certificate. Their duties on the other hand are to be loyal to, respect the Constitution, the national anthem and flag and to the best of their ability defend Zimbabwe and its sovereignty. [ [15] ]  

 

How citizenship can be obtained has been further clarified by the new Constitution.   In relation to citizenship by birth, one can attain citizenship if either one of his/her parents or grandparents are Zimbabwean citizen by birth or descent. The same applies in relation to citizenship by descent. An interesting phenomenal is that any child found in Zimbabwe, who is below the age of fifteen and whose nationality and parents are unknown, is regarded as a citizen by birth. [ [16] ]    However, where the parents and nationality is known then the citizenship can be revoked.

 

There is material departure from the old Constitution’s provision as regards citizenship by registration. The new provision provides that any person can, who has been continuously and lawfully residing in Zimbabwe for at least ten years, and satisfies the requirements set by an Act of Parliament, may apply to become a Zimbabwean citizen by registration. [ [17] ] The new criteria set forth is the aspect of “lawfulness” and satisfactions of other requirements set in the relevant Act of Parliament.   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.  Citizenship is not lost through marriage or dissolution of marriage.

 

However, citizenship can be invoked to those who got it through registration, if it was acquired by fraud or false representation or concealment of material facts and if the holder associates him/herself with an enemy during war in which is involved.  The same applies to citizenship by birth, with the exception of the latter fact. Citizenship cannot however, be revoked where the person will be rendered stateless.

 

4.2.   Citizenship and Immigration Board

The new Constitution gives provision for the establishment of a Board responsible for granting and revocation of citizenships by registration and granting of permits to non-citizens who intends to reside and work in Zimbabwe. The Board shall consist of a chairperson and at least two other members, appointed by the President. [ [18] ]

 

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.  

 

4.3.   Chapter 4 - The Declaration of Rights

Zimbabwe’s Declaration of Rights protects the following rights:

 

*             Protection of the  right to life

Section 48

*             Protection of the  right to personal liberty

Section 49

*             Protection of the rights of accused and detained persons

Section 50

*             Protection of the right to human dignity

Section 51

*             Protection of the right to personal security

Section 52

*             Protection of freedom of torture or cruel, inhuman and  

     degrading treatment

Section 53

*             Provisions of freedom from slavery or servitude

Section 54

*             Protection of freedom from forced labour

Section 55

*             Protection of right to equality and non-discrimination

Section 66

*             Protection of right to privacy

Section 57

*             Protection of freedom of assembly and association

Section 58

*             Protection of freedom to demonstrate and petition

Section 59

*             Protection of freedom of conscience

Section 60

*             Protection of freedom of expression and freedom of a media

Section 61

*             Protection of the right to access to information

Section 62

*             Protection of the right to use language and culture

Section 63

*             Protection of the freedom of profession, trade or occupation

Section 64

*             Protection of labor rights

Section 65

*             Protection of the freedom of movement and residence

Section 66

*             Political rights

Section 67

*             Protection of the right to administrative justice

Section 68

*             Protection of the right to fair hearing

Section 69

*             Protection of the rights of accused persons

Section 70

*             Protection of property rights

Section 71

*             Protection of the rights to agricultural eviction

Section 72

*             Protection of environmental rights

Section 73

*             Protection of the freedom from arbitrary eviction

Section 74

*             Protection of the right to education

Section 75

*             Protection of the right to health care

Section 76

*             Protection of the right to food and water

Section 77

*             Protection of marriage rights

Section 78

*             Protection of the rights of women

Section  80

*             Protection of the rights of children

Section 81

*             Protection of the rights of elderly

Section 82

*             Protection of the rights of persons with disabilities

Section 83

*             Protection of the rights of veterans of the liberation struggle

Section 84

 

The new Constitution brought about tremendous changes to the number of recognized rights, freedoms and the interpretation of the same. The protection afforded basically stretches from the narrow first generation rights to recognition and protection of second and third generation rights.  Part 1 of Chapter 4 provides for application and interpretation of these rights. As regards its application s45 provides for both horizontal and vertical application of the Constitutional rights. In particular, it affords these rights to both natural and juristic persons and importantly obliges the same and the State to respect, protect, promote and fulfill the rights and freedoms set out in the Constitution.  The interpretation of the bill of rights is provided for in s45 and it obliges the Courts, tribunals, forums and bodies to give full effect of the rights and freedoms; to promote the values and principles that underlies a democratic society and the values set out in the Constitution. Most importantly, this section gives the Courts the power to take into account international law and all treaties and conventions to which Zimbabwe is a party and to consider relevant foreign law.

 

In terms of enforcement of these rights, locus standi is given to any person, acting on their behalf or on others; or as a member, or in the interests, of a group or class of persons; or in the public interest; and any association acting in the interests of its members. The action can be for an actual infringement of the right or a likelihood that a right is about to be infringed. [ [19] ] The fact that a person has breached a law, does not bar a person from seeking a relief. [ [20] ] The granted rights and freedom are without limitations. Section 86 provides that they can be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors. Some of the factors that can be taken into account include in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest. However, the right to life; the right to human dignity; the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; the right not to be placed in slavery or servitude; the right to a fair trial; and the right to obtain an order of habeas corpus cannot be limited. [ [21] ] Even a state of emergency does not erode the aforementioned rights. [ [22] ] In other words, these rights are cannot be eroded, limited or waived.

 

The rights and freedoms afforded under the Bill of Rights are now broader and elaborate. What follows hereto are the salient features of some of the new and improved rights and freedoms in Zimbabwe. They are broadly categorized on three main heading namely; civil and political rights; socio-economic rights and collective rights.

 

4.3.1.      Civil and Political Rights

 

  • The Right to Life (s48):

Every person has the right to life. The death penalty is allowed to be imposed only to persons who have committed murder in aggravating circumstances. The death sentence can only be imposed to male persons between the age of 21 and 70. The provision further abolishes abortions except where terminated in accordance with the law. The new provision is a material departure from the old provisions which did not specify the age limits, the type of criminal offences in which it is applicable and was even executed on women.

 

  • Right to Liberty (s49):

This provision guarantees every person’s right not to be detained without trial and not to be detained arbitrarily and without justifiable cause. Importantly, no person may be detained merely for failure to fulfill a contractual obligation. The provision is susceptible to broad interpretation so as to fit any circumstances to deny liberty. However, the later provision goes to the heart of civil imprisonment which was recognized under law and it prohibits it.

 

  • Rights of Arrested and Detained Persons (s50)

The rights granted to accused persons include the right to be informed at the time of their arrest the reasons for the arrest and at the State’s expenses to call a person of their choice informing them of the arrest.  At their own expenses, however, they can consult a legal practitioner or medical practitioner in private. Importantly, they have to be brought before the court within 48 hours irrespective of the period ending on weekend or public holiday. There is an overhaul of the old provision which provided that the person should be brought before the Court within a reasonable time. This saw the accused being detained for a long period whilst awaiting trial and in most cases people being arrested on a Friday and spend the whole weekend in prison because the weekend and holidays were not included in the counting of hours of detention.  Visitations rights are also included and it covers both relatives and non-relatives

 

  • Right to Human Dignity (s51):

This section guarantees the respect and protection of every person right to inherent dignity in both their private and public life. This a new right afforded to individuals.

 

  • Right to Personal Security (s52):

This section provides for the protection against all forms of violence from private and public sources, guarantees the right to make decisions concerning reproduction and not to be subjected to medical or scientific experiments, or to the extraction or use of their bodily tissue, without their informed consent. This in short is the right to bodily and physical integrity.

 

  • Equality and Non-Discrimination (s56):

Equality before the law and equality as to protection and benefits of the law is guaranteed by this section. In particular it prohibits discrimination on the ground of nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock. It further entails that both man and women should have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The discrimination covered includes both de facto and de jure discrimination. The same rights however, can be derogated from where it is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. Further measures taken by the State to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, are not be regarded as discriminatory.

 

4.3.2.      Socio-Economic Rights

Socio-economic rights are “positive rights” that impose obligations on the State. They are enshrined in the International Convention on Social, Economic and Cultural Rights (ICSECR). Their justiciability is dependent on the availability of resources and as such they are progressively realized. It is a modern trend to have a Bill of Rights which encompasses these.

 

  • Work and Labour relations (s24):

Section 24 of the Constitution provides that the State and all institutions and agencies of government at every level must adopt reasonable policies and measures, to provide everyone with an opportunity to work in a freely chosen activity, in order to secure a decent living for themselves and their families. To this end the State will endeavour to secure inter alia the removal of restrictions that unnecessarily inhibit people from working or otherwise engage in gainful economic activities. The State further undertook to implement measures such as family care to enable women to enjoy a real opportunity to work.  These measures are to be taken within the limits of the State’s available resources.

 

  • Labour Rights (s65):

Section 65 captures the two broad categories of rights of employees, namely: individual rights and group rights. These rights which fall at the heart of labour law are hurriedly drafted and bunched in a few sentences.  The afforded rights are:

 

1.      the right to fair and safe labour practices and standards;

2.      the right to be paid a fair and reasonable wage;

3.      the right to form and join a trade union and employee or employers’ organisations of their choice and to participate in the lawful activities of those unions and organisations;

4.      the right to participate in collective job action, including the right to strike, sit in, withdraw their labour and to take other similar concerted action;

5.      the right to just, equitable and satisfactory conditions of work;

6.      The right to engage in collective bargaining;

7.      The right to organise; and form and join federations of such unions and organisations;

8.      Women and men have a right to equal remuneration for similar work and

9.      Women employees have a right to fully paid maternity leave for a period of at least three months.

 

  • The collective rights mentioned in item 3, 4 and 7 are not afforded to members of security services. Additionally, the right to collective job action can be restricted by law in order to maintain essential services.  What “essential services” mean is to be defined by the Minister and include health and security services.

 

  • Property Rights (s71-s72):

The right to property is afforded in this section and this include the right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others. Property is defined as property of any description and any right or interest in property. Compulsory acquisition of property is outlawed except where the following conditions are met:

 

a)     the deprivation is in terms of a law of general application;

b)     the deprivation is necessary to fulfil a public purpose

c)      There must be a reasonable notice of the intention to acquire the property to the person whose interest is to be affected by the acquisition and

d)     There must be payment of fair and adequate compensation before acquiring the property or within a reasonable time after the acquisition; and

e)      Further, one can contest the acquisition, its legality and payment of compensation.

 

However, if the rights compulsorily acquired are agricultural land rights, no compensation is payable in except for improvements effected on it before its acquisition. In the same breath no person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application. Further, the acquisition may not be challenged on the ground that it was discriminatory in contravention of section 56. The onus is on the former colonial power to establish a Fund for the purposes of paying compensation for the acquired land. Lastly, but not least, an Act of Parliament may make it an offence for any person, without lawful authority, to possess or occupy agricultural land designated for resettlement or other State land.

 

This section is the bone of contention between Zimbabwe and its former Western and American allies. It managed to stay irrespective of the SADC Tribunal decision that the activities undertaken its predecessor were expropriatory. [ [23] ]

 

  • Right to Education (s75):

Every citizen and permanent resident of Zimbabwe has a right to a basic State-funded education, including adult basic education; and further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible. Further, every person has the right at their expense to establish and maintain private institutions for the purposes of furthering this right. The institutions, however, should not be discriminatory.

 

  • Right to Health Care (s76):

Every citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services, including reproductive health-care services. Those with chronic illness have the right to have access to basic healthcare services for the illness. Importantly no person may be refused emergency medical treatment in any health-care institution. The State undertakes to take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right to health care.

 

  • Right to Food and Water (s77):

Every person has the right to safe, clean and potable water; and sufficient food. The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right.

 

  • Marriage Rights (s78):

The right of persons to marry at will and persons of their choice is afforded in this section. However, there is explicit prohibition of same sex marriage.

 

4.3.3.      Group Rights

 

  • Environmental Rights (s73):

The right to a harmless environment is granted in this section. To achieve this, the environment will be protected through passing of reasonable legislation and other measure meant to prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting economic and social development. The State undertakes to take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right.

 

As aforementioned the new Constitution ushered in new rights and freedoms. Their protection and realization is yet to be tested.  What will be of interest is to see how the Courts will interpret the limitations of these rights, especially in the light of new legal terminological statements like “…fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom..”

 

The new Constitution also brought new institutions to support democracy, namely: the Zimbabwe Electoral Commission; Zimbabwe Human Rights Commission;  Zimbabwe Gender Commission; Zimbabwe Media Commission; and National Peace and Reconciliation Commission. Another commission to combat corruption is the Anti-Corruption Commission

 

4.4.   Chapter 5 – The Executive

Chapter 5 of the constitution defines the executive arm of the state. It states that there shall be a President who is Head of State and of Government and Commander-in-chief of the Defense Forces.   A person qualifies for president if he is a citizen of Zimbabwe by birth or by descent, has attained the age of forty years, a registered voter and is ordinarily resident in Zimbabwe.  The President is elected by voters registered on the common roll, and his/her term of office is five years.  The limit for the President’s term is two terms and is coterminous with the Parliament’s life [24] .  

 

 

The Constitution places certain duties on the President, namely: promoting unity and peace for the nation’s benefit; recognising and respecting the ideals and values of the liberation struggle; ensuring the protection of the fundamental human rights and freedoms and the rule of law; and respecting the diversity of the people and communities of Zimbabwe. [ [25]

 

The Constitution also provides for two Vice Presidents of Zimbabwe who are directly elected jointly with the President. The candidatures of the Vice Presidency are nominated by the Presidential candidate. [ [26] ] However, the transitional arrangements in Schedule six of the Constitution provide that the Presidential candidate within ten years from the first elections will not nominate any person to stand for elections as the Vice –president.  Currently the President is Robert Gabriel Mugabe and there is one Vice-President, Joyce Teurai Ropa Mujuru. Mugabe is the first President to hold office under the new Constitution, having won the elections by a 61, 09%.   

 

The executive powers vests in the President and are exercised through the Cabinet subject to the dictates of the Constitution. The Cabinet is consist of President, as head of the Cabinet, the Vice

Presidents and such Ministers as the President may appoint to the Cabinet. The President enjoys immunity while in office and is not liable to any civil or criminal proceedings in any Court.

 

4.5.   Chapter 6 – 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 Senate and the National Assembly.   Parliament also has the prerogative of conferring legislative functions on any person or authority. The Senate composes of eighty senators of whom six are elected from each of the provinces by proportional representation; sixteen members are chiefs, of whom two are elected by the provincial assembly of Chiefs from each of the provinces, other than the metropolitan provinces; the President and Deputy President of the Council of Chiefs, elected by the Council of Chiefs, are ex officio members and two members are elected to represent people with disabilities. The National Assembly has 270 members of which 210 are elected by ballot from the 210 constituencies and sixty are party-list seats reserved for women, 6 in each of the ten provinces.

 

The Legislative authority of Parliament is enshrined in section 117. This states that subject to provisions of the 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. [ [27] ]

 

5.      The Justice System in Zimbabwe

The justice system in Zimbabwe comprises the following elements: the Constitutional Court, the Supreme Court, the High Court, the Administrative Court, the Labour Court, Magistrates’ Courts, Customary law Courts;  the system for the administration of the courts, the National Prosecution Authority 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. The past years has seen the justice system recovering from controversies like lack of independence, fragrant disrespect of human rights defenders and protection of members of the judiciary.

5.1.   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. The judicial authority vests in the Constitutional Court; the Supreme Court; the High Court; the Labour Court; the Administrative Court; the magistrate’s courts; the customary law courts; and other courts established by or under an Act of Parliament. [ [28] ] Section 163 speaks of the composition of the judiciary as follows:

 

“163 The Judiciary

(1) The judiciary of Zimbabwe consists of—

(a) the Chief Justice, the Deputy Chief Justice and the other judges of the Constitutional

Court;

(b) the judges of the Supreme Court;

(c) the Judge President of the High Court and the other judges of that court;

(d) the Judge President of the Labour Court and the other judges of that court;

(e) the Judge President of the Administrative Court and the other judges of that court; and

(f) persons presiding over magistrate's courts, customary law courts and other courts established by or under an Act of Parliament.”

 

The judiciary is headed by the Chief Justice and the same is in charge of the Constitutional Court

and the Supreme Court.  The High Court is headed by the Judge President, whereas the Labour Court is headed by the Judge President of the Labour Court. The Judge President of the Administrative Court is in charge of that court.

5.2.   Independence of the Judiciary

Independence of the Judiciary is guaranteed in s164 of the Constitution. In particular, this section details that the courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice. The Constitution further recognises that independence of the judiciary is crucial to the rule of law and democratic governance hence neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts. To this end the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. The Constitution further entails that decisions of the courts are binding on everyone including the State, government institutions and agencies. These provisions mirrors’ the South Africa’s Constitutional provision [ [29] ] and seeks to cover the two traditional facets of judicial independence namely: institutional independence and decisional independence. [ [30] ] The latter is preserved by these three facets: judicial self administration; security of tenure and security in emoluments.

 

The independence of the judiciary in Zimbabwe came under scrutiny when it was handling the election petitions.  The former Prime Minister withdrew his petition arguing that there was no independence and impartiality of the judiciary.

5.2.1.      Appointment of Judges

Section 180 provides for the appointment of all judges. It introduces a new procedure for appointment, namely that the Judicial Service Commission must (a) advertise the position and invite applications; (b) invite the President and the public to make nominations; (c) conduct public interviews of prospective candidates; (d) prepare a list of three qualified persons as nominees for the office; and (e) submit the list to the President for appointment.  If the President considers that none of the persons on the list submitted to him are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned. The appointments must be gender reflective.

 

It is submitted that these provisions introduce new critical components meant to curb the abuse of political power in the making of judicial appointments. They are hence meant to protect the bench from partisan political appointments. Such provisions are crucial for the promotion and protection of judicial independence. The procedure may be cumbersome but necessary to ensure that suitable and qualified personnel’s are appointed. 

 

5.2.2.      Judicial Service Commission

This Commission is provided for in by s189 of the Constitution. This body consists of (a) the Chief Justice; (b) the Deputy Chief Justice; (c) the Judge President of the High Court; (d) one judge nominated by the judges of the Constitutional Court, the Supreme Court, the High Court, the Labour Court and the Administrative Court; (e) the Attorney-General; (f) the chief magistrate; (g) the chairperson of the Civil Service Commission; (g) three practising legal practitioners of at least seven years’ experience; (i) one professor or senior lecturer of law; (j) one person who for at least seven years has practised in Zimbabwe as a public accountant or auditor; and (k) one person with at least seven years’ experience in human resources management, appointed by the President. The composition of the body reflects a more representative body than before.

 

Its functions are espoused in s190 of the Constitution and these are: (i) to tender advice to the Government on any matter relating to the judiciary or the administration of justice and the Government must pay due regard to any such advice; (ii) promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice in Zimbabwe, and has all the powers needed for this purpose; and (iii) with the approval of the Minister to make regulations which are related to its function. Other functions relating to the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts are designated to the Judicial Service Commission by the Judicial Services Act [Chapter 7:18].

 

As indicated the body is now more representative and in its operation, it is expected to be fair, just and transparent. It is instrumental in the administration of the judicial service sector. The reforms brought by the Constitution were long overdue and it is hoped that the Commission will fulfil its functions in a way that promotes independence of the judiciary and restore faith in the whole legal system.

5.2.3.      Judicial Tenure and Remuneration

The tenure for Constitutional Court judges is a non-renewable fifteen years term but the judge must retire earlier if he/she reaches the age of seventy years. The judge may be appointed as judges of the Supreme Court or the High Court, at their option, if they are still eligible for such appointment. [31] As regards other judges their tenure is subjected to the age, i.e., they hold office until they react the age of seventy. However, the judge may still hold the office even upon resignation or expiry of the tenure for the sole purpose of finalising the proceedings which were commenced during his tenure. In terms of s186 (6), the office of a judge must not be abolished during his or her tenure of office.

 

During their tenure, judges are entitled to the salaries, allowances and other benefits fixed from time to time by the Judicial Service Commission with the approval of the President given after consultation with the Minister responsible for justice and on the recommendation of the Minister responsible for finance. These emoluments are paid from the Consolidated Revenue Fund and cannot be reduced whilst they are in office or acting in the office concerned. Other conditions of services, including transfers and dismissal are provided for in the Judicial Services Act [Chapter 7:18].

5.2.4.      Removal of Judge from Office

Section 187 of the Constitution provides for the circumstances in which a judge may be removed from office. Subsection (1) provides that a judge may be removed from office only for (i) inability to perform the functions of his or her office, due to mental or physical incapacity; (ii) gross incompetence; or (iii) gross misconduct and shall only be removed in accordance with the provisions of s187.  The procedure of removing a judge is outlined in subsection (2) through to subsection (9) of the Constitution. In plain language if the President considers that the question of removing the Chief Justice or any judge or the Judicial Services Commission has advised as such then a tribunal of inquiry has to be established for that purpose. The Tribunal will be composed of three members appointed by the President, of whom (a) at least one must be a person who has either served as a judge of the Supreme Court or High Court in Zimbabwe; or  holds or has held office as a judge of a court with unlimited jurisdiction in civil or criminal matters in a country whose common law is Roman-Dutch or English, and English is an officially recognised; (b) at least one must be chosen from a list of three or more legal practitioners of seven years’ standing or more who have been nominated by the Law Society of Zimbabwe. One of the members has to be designated as the Chairperson. The constituted Tribunal has to inquire into the question of removing the concerned judge from office and report its findings to the President and recommend whether the judge should be removed or not.  The President is obliged to act in accordance with the recommendations of the Tribunal.

 

Important features emerge from this section. First there are only two grounds of removing a judge, that is, inability to perform his/her functions in the office as judge or gross misconduct. The second is the aspect that the Constitution has a lacuna in subsection 4 in that’s the Constitution does not provide for the third person who will constitute the Tribunal. The first two are members are clearly stated whereas the third member is “forgotten”. Secondly the Tribunal reports directly to the President not the Judicial Service Commission even if the Commission had advised on the question of removal of a judge. Lastly the recommendations of the Tribunal are binding on the President.  To date there has not been any Tribunal set under the provisions of the new Constitution hence it is too early to judge on its efficiency. It will be interesting to see how the lacuna will be dealt with.  

5.3.   The Constitutional Court

This Court is established in terms of s166 (1) of the Constitution as a superior court of record. It consists of the Chief Justice and the Deputy Chief Justice; and five other judges. If the services of an acting judge are required the Chief Justice may appoint a judge or former judge to act for that period. Cases for arising from the Bill of Rights and concerning elections of the President or Vice –President are heard by a full bench whilst other are heard by three judges. However, in terms of s18 of the 6 th Schedule, for a period of seven years from the effective date of the Constitution, the Constitutional Court shall be constituted by the Chief Justice and Deputy Chief Justice and seven other judges from the Supreme Court. These sit together as bench to hear any constitutional application.   

5.4.   The Supreme Court

The Supreme Court is created by s168 of the Constitution. It is the superior court of record and consists of the Chief Justice and the Deputy Chief Justice and no fewer than two other judges. Additional judges can be appointed if circumstances so requires. The Supreme Court is the final court of appeal in all matters, except in matters over which the Constitutional Court has jurisdiction. For avoidance of doubt, the Supreme Court does not have any jurisdiction over constitutional matters, either as a court of first instance or as a court of appeal. [32] However, additional jurisdiction can be conferred by an Act of Parliament, in this regard, the Supreme Court Act. [ [33] ] For all intents and purposes, the current bench in the Supreme Court is the same for the Constitutional Court. 

5.5.   The High Court

Section 170 of the Constitution establishes the as a superior court of record. It consists of the Chief Justice, the Deputy Chief Justice; the Judge President of the High Court; and judges as may be appointed from time to time. In a criminal trial, the court is said to be duly constituted if there is one judge and two assessors. The qualification of an assessor are set in s6 (1) of the High Court Act (Chapter 7:06]. The assessor must possess skill and experience in any matter to be considered at the trial. Their main function at a trial is to decide questions of fact together with the judge.

 

 The jurisdiction of the High Court is provided for in s171 of the Constitution and this entails original jurisdiction over all civil and criminal matters throughout Zimbabwe; jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions. It may also decide constitutional matters except those that only the Constitutional Court may decide. It is also a court of appeal for matters that arose in the magistrate’s court. The High Court Rules provides for rules of procedure in the High Court.

 

The extra-territorial jurisdiction of the High Court is limited and mostly depended on the provisions of the relevant statute. Section 9 of the Public Order and Security Act (Chapter 11:17), for instance confers extra-territorial jurisdiction in respect of crime of supplying weapons to an insurgent, bandit, saboteur or terrorist. This section reads as follows:

 

Any person who, inside or outside Zimbabwe, supplies weaponry to an insurgent, bandit, saboteur or terrorist, knowing that the person to whom such weaponry is supplied is an insurgent, bandit, saboteur or terrorist or realizing that there is a risk or possibility that such person is an insurgent, bandit, saboteur or terrorist, shall be guilty of an offence and liable to imprisonment for life.

 

The High Court also has extra-territorial jurisdiction on offences where the harmful effect is felt in Zimbabwe even when the crime was committed outside Zimbabwe. The case of S v Mharapara is illustrative to this point. [ [34] ]

5.6.   The Labour Court

The Labour Court is provided for under s173 of the Constitution. It consists of a judge President and other judges that are appointed from time to time. It jurisdiction is restricted to labor and employment issues as conferred to it by the Labour Act [Chapter 28:01]. This Court can be regarded as a special Court meant to deal with labor issues only.

There are two main situations in which a worker may have access to the Labour Court. Firstly, a person with a labor dispute or labor-related matter may refer the matter to the Ministry Of Labour, where it will be dealt with by a labor officer and thereafter by a senior labor relations officer. If a worker is not happy with the decision of a senior labor relations officer, an appeal will go to the Labour Court. This is the stage at which the Court gets involved. The second situation in which the Court 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. An appeal lies to the Supreme Court, only on questions of law.

5.7.   The Administrative Court

The Administrative Court is a court of record established in terms of s173 of the Constitution. It consists of a Judge President; and other judges as may be appointed from time to time. The Administrative Court has such jurisdiction over administrative matters as conferred to it by statute over particular matters but generally, the Court acts as a court of appeal from a wide range of administrative tribunals. The following pieces of legislation provide functions to the Administrative Court: (i) the Land Acquisition Act (Chapter 20:10); (ii) the Regional, Town and Country Planning Act (Chapter 29:12) and the Water Act (Chapter 20:22).

5.8.   Magistrates’ Court

The existence of Magistrate Courts is envisaged by s174 (a) of the Constitution. It is the lowest Court in Zimbabwe which has both civil and criminal jurisdiction. It is presided over by a Magistrate. The magistrates are divided into four classes namely: ordinary magistrates, senior magistrates, provincial magistrates and regional magistrates. [ [35] ] Any of the listed four can preside over this Court. One qualifies to be a Magistrate by obtaining a law degree from designated universities in Zimbabwe or by graduating from the Judicial College of Zimbabwe. Magistrates are appointed by the Judicial Service Commission.

 

In criminal matters, the jurisdiction of the Magistrates Court is determined by three factors: (a) the nature of the offence; (b) the punishment that may be imposed and (c) the territory where the crime was committed. As regards nature of offence and punishment, the Magistrates Court has jurisdiction over all criminal matters except treason, murder and any statutory offence for which death is a mandatory sentence.   The general jurisdiction of a regional magistrate is limited to maximum sentencing of seven years, but this increases to ten years on a special jurisdiction over the offences of rape, public violence, arson, malicious injury to property and robbery with aggravating circumstances. [ [36] ] Territorially, the general rule is that a Magistrates Court only has jurisdiction over offences occurring in the region or province in which it is established. [37] However, there are exceptions to this rule which include that: (i) a court may have jurisdiction for an offence committed within five kilometres beyond its boundary, (ii) where any element of the offence takes place in a given province or region, the court therein may have jurisdiction even though the other elements of the offence have taken place outside the province or region and (iii) the Prosecutor –General, with the consent of the accused, may direct that the trial be held in the court of any province.

 

In civil matters, the jurisdiction of the Magistrates Court is mainly determined by the prescribed monetary limitation. Where the claim does not exceed the prescribed monetary limit of and the defendant resides, carries on business, or is employed within the province where the court is situated, or the cause of action arose wholly within the province, then this Court has jurisdiction. [ [38] ]  However, in terms of section 14 of the Magistrates Court Act this Court lacks jurisdiction in (i) resolving disputes regarding validity or interpretation of a written will; (ii) status of a person in respect of mental capacity; and (iii) the dissolution of a marriage solomised under Marriage Act [Chapter 5:11].

 

5.9.   Specialist/Specialized Courts in Zimbabwe [ [39] ]

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. Examples of special courts in Zimbabwe are Labour Court; Administrative Court; Income tax court; Electoral courts and Customary Law Courts.

5.9.1.     Administrative Court as the Water Court

Another function of the Administrative Court is resolving disputes arising from the use of public water. In this respect, the Administrative Court acts as the Water Court. 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 (Chapter 20:24). The Act provides that all water vests in the President and it prohibits private ownership of water except as provided for under the Act. In this respect, no water shall be stored, abstracted, apportioned, controlled, diverted, used or in any way dealt with except in accordance with the Water Act.

 

The Act recognises “water” in hydrological cycle that is (a) surface water; and (b) all water which rises naturally on any private land or drains or falls naturally on to any private land, even if it does not visibly join any public stream; and (c) all ground water. Consequently three groups emanates namely: 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 water for primary purposes, without authorization. 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 originating from river systems, for any other activity requires authorization through renewable permits. The application for a permit maybe lodged at any time with the catchment council. [ [40] ] The permit is valid for twenty years or even a shorter or longer period and may be accompanied by conditions which the council deems fit.  Before granting an application for a permit relating to water which is being beneficially used by another person, a catchment council shall require the applicant to pay to the person beneficially using the water concerned such compensation as may be agreed by the applicant and such person or failing such agreement, as may be fixed by the catchment council. [ [41] ] Any person aggrieved by the decision of the catchment council can appeal to the Administrative Court.

 

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. The Water Court hence functions to resolve any water related dispute. Appeals from the administrative court go to the Supreme Court of Zimbabwe.

5.9.2.     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.

5.9.3.     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 value added 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 value added 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.

5.9.4.     Customary Law Courts

The creation of customary law Court is recognized by s162 (g) as read with s174 of the Constitution. These Courts’ jurisdiction is primarily 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 customary court decide only on customary law issues

·        The customary court has limited jurisdiction. It cannot adjudicate (i) dissolve a customary law marriage solemnized in terms of the Customary Marriages Act (Chapter 5:07); (ii) determine custody or guardianship of minors and (iii) determine maintenance claims.

·        The value of a claim before a primary court should not exceed a minimal monetary value

·        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.

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

5.9.5.     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

·        This Court lacks jurisdiction on claims 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 may 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.

5.9.6.     The Electoral Court

The Electoral Court is a court of record set up in terms of s161 of the Electoral Act [Chapter 2:13] to solve and to deal with disputes arising out of elections, or to deal with election petitions. It has an exclusive jurisdiction to hear appeals, applications and petitions and to reviews any decision of the Zimbabwe Electoral Commission and has powers to give judgements, orders and directions in those matters as might be given by the High Court. Judgements, orders and directions of the Electoral Court shall be enforceable in the same way as judgments, orders and directions of the High Court. It however, does not have criminal jurisdiction. Judges are appointed in terms of the Constitution. The Electoral Court’s jurisdiction may be exercised by a Judge of the Electoral Court sitting alone or with one or more assessors appointed in terms of s163 of the Electoral Act. The Registrar of the High Court is the Registrar of the Electoral Court.

5.9.7.     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.

5.9.8.     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.

5.9.9.     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.

5.9.10. 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.

5.10.       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 Constitutional Court; 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.

5.11.       The National Prosecution Authority [NPA]

The NPA is one of the institutions established by the Constitution meant to combat crime. It is established in terms of s258 of the Constitution. Its main functions are instituting and undertaking criminal prosecutions on behalf of the State and discharging any necessary functions incidental to instituting and undertaking criminal proceedings. In terms of s259 of the Constitution, the NPA is headed by a Prosecutor-General. This office is a public office but does not form part of the Civil Service.

 

The Prosecutor-General is appointed by the President on the advice of the Judicial Service Commission on following the procedure for the appointment of a judge discussed above. (4) The Prosecutor-General must be a person qualified for appointment as a judge of the Supreme Court. His/her term of office is a period of six years and is renewable for one further such term. Before taking office, the Prosecutor-General must take an oath of office before the President or a person authorised by the President. His/her removal from office is governed by the same provisions that relates to the removal of judges. At the time of writing, the NPA Bill to operationalise this department was before the Cabinet Committee.

 

The office of prosecution used to be in the office of the Attorney-General. With the creation of this department, it means that the NPA is now an independent stand-alone department from the Attorney General department. For all intents and purposes, the Attorney General department now concentrates on legal drafting, giving legal advice to the government and representing the government in civil and constitutional proceedings. [ [42] ] The current Prosecutor General, Johannes Tomana was the previous Attorney General. [ [43] ]

 

In discharging his/her duties, the Prosecutor –general must formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings. [44] In terms of s261, the Prosecutor General and officers of NPA must act in accordance with this Constitution and the law when conducting their duties. In specific details, they should not act in a partisan manner; further the interests of any political party or cause; prejudice the lawful interests of any political party or cause; or violate the fundamental rights and freedoms of any person. In simple terms, they should be politically neutral in discharging their function. The Prosecutor-General reports to the Parliament annually of the activities of the NPA.

 

6.     The Legal Profession

The majority of lawyers in Zimbabwe are represented by the Zimbabwe Law Society. T he Society maintains a register of all legal practitioners registered to practice law in Zimbabwe. It is responsible for all disciplinary matters involving legal practitioners, the professional interests of legal practitioners, the encouragement of and promotion of the study of law and jurisprudence including securing efficiency and responsibility on the part of those seeking to practice law in Zimbabwe. It has other functions commonly associated with a statutory body whose responsibility is representing the views of legal practitioners and controlling and disciplining legal practitioners practicing within its jurisdiction. [ [45] ] There is also a Zimbabwe Bar Association, which exists for those practitioners who choose to practice solely as advocates. 

 

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], w hich 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.

 

7.      Legal Aid

Legal aid is defined as “the system of providing legal services to persons who are unable to afford to pay fees for such services.” [46] This service is an integral part of modern legal systems. It is rooted in the understanding that not all people can afford to access legal services, especially representation because of the fees charged by the legal practitioners for those services. The need for legal aid cannot be overemphasised. Section 31 of the Constitution emphasis on this and provides that t he State must take all practical measures, within the limits of the resources available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice.

 

In Zimbabwe 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.

7.1.   Civil Court Legal Aid

In both the magistrate courts and high court there exists a system for the assistance of indigent persons. In the magistrate's 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 person 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.

7.2.   Criminal Court Legal Aid

The new Constitution of Zimbabwe enshrines the right to legal to the accused. It particularly state in s170 (1) (e) of the Constitution that the accused person has the right to be represented by a legal practitioner assigned by the State and at the State’s expense, if substantial injustice, would otherwise result. This language speaks that the right is not automatic and can only be availed to if substantial injustice would occur if representation is not provided to the accused. Application of this section requires a case-by case analysis of the accused, for instance a murder need representation than a thief.

 

The Legal Aid Act [Chapter 7:16] 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 by 3 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. The main form of legal is by providing a legal practitioner or law officer to represent the indigent person.  A legal practitioner who refuses to represent the indigent may found himself with his right of audience removed (section 26).

7.3.   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 and 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.

 

8.     International Law and Its Application in Zimbabwe

The application of international law in Zimbabwe is governed by s326 and s327 of the Constitution. Section 326 recognises that c ustomary international law is part of the law of Zimbabwe to the extent of its consistency with laws of Zimbabwe. This provision is an affirmation to the long-standing judicial precedent by Waddington J in the Barker McComarc (Pvt) Ltd v. Government of Kenya case where he stated that “ there is no doubt that customary international law is part of the law of this country.” [ [47] ]

 

As regards international conventions, treaties and agreements s326 (2) of the Constitution provides that a n international treaty which has been concluded or executed by the President or under the President’s authority (a) does not bind Zimbabwe until it has been approved by Parliament; and (b) does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament. Further an agreement which is not an international treaty but which (a) has been concluded or executed by the President or under the President’s authority with one or more foreign organisations or entities; and (b) imposes fiscal obligations on Zimbabwe; does not bind Zimbabwe until it has been approved by Parliament. However, an Act of Parliament may be adopted to provide a contrary position and the Parliament may declare through a resolution that any particular international treaty or class of international treaties does not require approval of the Parliament. Such a resolution does not apply to treaties whose application or operation requires (a) the withdrawal or appropriation of funds from the Consolidated Revenue Fund; or (b) modification of the domestic laws of Zimbabwe.

 

Importantly when interpreting legislation, every court and tribunal is obliged to adopt any reasonable interpretation of the legislation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement. This provision applies mutatis mutandis on the use of customary international law. In the realm of human rights, the Courts are mandated by s46(c) of the Constitution to take into account the international law and all treaties and conventions to which Zimbabwe is a party. For these provisions to be effective and s165 (7) of the Constitution, as one of its guiding principles to the judiciary, it mandates members of the judiciary to  take reasonable steps to maintain and enhance their professional knowledge, skills and personal qualities, and in particular must keep themselves abreast of developments in domestic and international law.

 

The mentioned provisions are important as they empower the judiciary to interpret the law in tandem with international trends. At the same time, the clauses are couched in a manner which checks the executive decisions of signing treaties by subjecting their application to the approval of the Parliament. These provisions do not stop any person from invoking international law in support of their cases. Strictly speaking even when the treaty is not ratified, one can find recourse under customary international law, albeit it enshrines most minimum principles of international law. At the time of writing, the Constitutional provisions had not tested, in particular, the use of international law in interpreting any legislation or case. 

 

9.     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 2010 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. However, most recent judgments are found electronically from a number of websites. [ [48] ]

9.1.   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.

9.2.   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.

9.3.   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.

 

10. 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. It has been in application since 2005.

11.   Law Schools [ [49] ]

There are currently two universities that offer the study of law, namely University of Zimbabwe, and Midlands State University. These offer Bachelor of Laws Honours Degree, which is studied over a four year period at the former and five years at the latter.  The study of Law at the universities 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 Faculties are 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. A third university, namely the Great Zimbabwe University, is at an advanced stage of launching the Bachelor of Law Honours Programme under its Herbert Chitepo Law School.

 

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.

 

12.   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.

 

13.   Legal Resources Foundation [ [50] ]

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.

 



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

[ [2] ] Section 2 of the Constitution of Zimbabwe

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

[ [7] ] Section 8 and s79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] Act 24 of 2004

[ [8] ] Section 117(1) of the Constitution of Zimbabwe

[ [9] ] Section 130 of the Constitution of Zimbabwe

[ [10] ] Section 282 (e) of the Constitution of Zimbabwe

[ [11] ] Section 162 (g) as read with s174 (b) of the Constitution of Zimbabwe

[ [12] ] 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.

[ [13] ] Section 176 of the Constitution

[ [14] ] Section 2  of the Constitution of Zimbabwe reads thus;

Supremacy of Constitution

(1)    This Constitution is the supreme law of Zimbabwe and any law, practice, custom or

                  conduct inconsistent with it is invalid to the extent of the inconsistency.

(2)   The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.

[ [15] ] Section 34 of the Constitution

[ [16] ] Section 36 (3) of the Constitution

[ [17] ] Section 38(2) of the Constitution

[ [18] ] Section 41 of the Constitution  

[ [19] ] Section 85 (1) of the Constitution

[ [20] ] Section85 (2) of the Constitution

[ [21] ] Section 86 (3) of the Constitution

[ [22] ] Section 87 (4) of the Constitution

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

[ [24] ] Section 95 of the Constitution

[ [25] ] Section 90 of the Constitution

[ [26] ] Section 92 of the Constitution

[ [27] ] The Fifth Schedule to the Constitution provides for the legislative process.

[ [28] ] Section 162 of the Constitution of Zimbabwe

[ [29] ] South Africa Constitution 1996 s 165(2)-(4).

[ [30] ] Justice Edwin Cameron, ‘Middle Temple and SA Conference: Judicial Independence’ Advocate December 2010. Available Online http://www.sabar.co.za/law-journals/2010/december/2010-december-vol023-no3-pp24-29.pdf    [accessed 11 February 2014]

[ [31] ] Section 186 of the Constitution of Zimbabwe

[ [32] ] Section 169 of the Constitution of Zimbabwe

[ [33] ] Supreme Court Act [ Chapter 7:13 ]

[ [34] ] S v Mharapara 1985 (1) ZLR 359.

[ [35] ] Madhuku L (2010) An Introduction to Zimbabwean Law. Weaver Press: Harare at 62

[ [36] ] Ibid

[ [37] ] Section 56 (1) of the Magistrates Court Act provides as follows: “ Subject to sub-Section (1) of Section forty-nine, any person charged with any offence committed within any province or regional division may be tried by the court of that province or that regional division, as the case may be.”

[ [38] ] Madhuku L (2010) An Introduction to Zimbabwean Law. Weaver Press: Harare at 70-71

[ [39] ] Madhuku L (2010) An Introduction to Zimbabwean Law. Weaver Press: Harare at 73

[ [40] ] Catchment Councils are established in terms of s20 of the Water Act. Their functions include preparing outline plans, determine applications and grant permits for water withdrawals and use, regulate and supervise exercise of water permits and supervise performance of sub-catchment councils.

[ [41] ] Section 34(6) of the Water Act

[ [42] ] S114-s115 of the Constitution

[ [43] ] The office of the Attorney General is currently vacant

[ [44] ] Section 260 (2) of the Constitution

[ [45] ] http://www.lawsociety.org.zw/    

[ [46] ] Madhuku L (2010) An Introduction to Zimbabwean Law. Weaver Press: Harare at 127

[ [47] ] 1983 (4) SA 817 (ZS)

[ [48] ] See for instance the http://www.saflii.org/

[ [49] ]   http://tsime.uz.ac.zw/