Head… · Web viewthe words used and to deduce from them what any particular section, phrase or word means, ... kunze & Another . 1997 (2) ZLR 544, 1998 2 BCLR 170 (SC),

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IN THE CONSTITUTIONAL COURT OF ZIMBABWE CASE NO. CCZ42/2015HELD AT HARARE

In the matter between:-

HILTON CHIRONGA 1ST APPLICANT

RASHID STUART MAHIYA 2nd APPLICANT

AND

MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS 1ST RESPONDENT

MINISTER OF HOME AFFAIRS 2ND RESPONDENT

MINISTER OF DEFENCE 3RD RESPONDENT

THE GOVERNMENT OF REPUBLIC OF ZIMBABWE 4TH RESPONDENT

APPLICANTS’ HEADS OF ARGUMENT

A. GENERAL

1. In this matter, the Applicants have instituted proceedings, against the Respondents in respect of which they seek the following order:-

“IT IS ORDERED THAT:

1. The Respondents’ failure, to enact the law, provided for in terms of Section 210 of the Constitution of Zimbabwe, is a breach of the Constitution of Zimbabwe.

2. The failure by the Respondents, to enact the law to bring in effect Section 210 of the Constitution of Zimbabwe is a violation of the Applicant’s right to equal protection and benefit of the law as defined by Section 56 (1) of the Constitution.

3. The Respondents must gazette the Bill envisaged by Section 210 of the Constitution of Zimbabwe within 45 days from the date of this Order.

4. That Respondents jointly and severally each paying the other to be absolved pays costs of suit.”

2. The Applicants thus seek two things. A declaration to the effect that the Respondents’ actions are unconstitutional in so far as they relate to the failure to enact the law envisaged by Section 210 and secondly a mandamus, with regards to compliance by the Respondents of the law in question.

Applicants’ right to approach this Honourable Court

3. The Applicants have a right to approach the present court based on two platforms. Any citizen, concerned, with the non-fulfilment of a constitutional obligation, by the State or any other board mandated to carry out a thing by the Constitution, has the right to approach the Constitutional Court.

4. The direct access to the Constitutional Court when it is in the interest of justice, is implied and confirmed in the Constitution itself. Section 167 (5) makes it clear that rules of the Constitutional Court must allow a person, when it is in the interest of justice and with or without leave of the Constitutional Court to bring a

Page 2 of 22 Heads of Argument in the matter between

Hilton Chirong & Rashid Mahiya v. Minister of Justice, Legal & Parliamentary Affairs & 3 Others Case Number: CCZ 42/2015Prepared by Tendai Biti Law

constitutional matter directly to the Constitutional Court.

5. Direct access therefore, on a constitutional matter, must only be restricted and judged or not it is in the interest of justice to bring the application.

6. Surely, where there is non-compliance with the Constitution itself, then it is in the interest of justice to bring such matter.

7. This is fortified as well, by the fact that Zimbabwe is a constitutional democracy. Section 2 of the Constitution makes it clear that the same is the supreme law of Zimbabwe, and any law, practice, custom or conduct inconsistent with the same is invalid to that extent.

8. The courts, and indeed the Constitutional Court, become the watchdog of constitutional compliance and in this regard, the Court would therefore entertain, any application, in the interest of justice, which gives it the opportunity of playing its watchdog rule.

B. COMMENTS ON CONSTITUTIONAL INTERPRETATION



To the extent that this case involves constitutional interpretation, it is important to define the ground rules relating to the interpretation of the constitution

The text

9. In Hewlett v Minister of Finance & Another 1981 ZLR 571, Fieldsend CJ correctly held that the starting point in interpreting the Constitution must be found in the words used in the Constitution. It thus stated as follows:-

“... In general the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation. It is necessary to look to the words used and to deduce from them what any particular section, phrase or word means, having regard to the overall context in which it appears.”

10. That the starting point is the context of the text, was also restated by Kentridge JA in State v Zuma and Others 1995 (2) SA 642 (CC) wherein he stated as follows:-



“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective meaning’. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconception. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination. ...I would say that a Constitution ‘embodying fundamental principles should as far as its language permits be given a broad construction.”

The constitutional interpretation as defined by the constitution itself



11. Whilst the words and language used in the Constitution are the obvious starting point. But sight must not be lost of the fact that the Constitution itself defines the manner in which it must be interpreted. It does so in Section 46 of the Constitution which reads as follows:-

“(1) When interpreting this Chapter, a court, tribunal, forum or body –

(a) must give full effect to the rights and freedom enshrined in this Chapter;

(b) must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3;

(c) must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) must pay due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) may consider relevant foreign law;

In addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.



(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

12. Section 46 thus enjoins a number of key principles and matrices that shall guide statutory interpretation.

13. Chief among this is the obligation of the court to give full effect to the rights and freedoms enshrined in the Bill of Rights.

14. For the purposes of this case, the right that is sought to be asserted is the right to defined in Article 210 of the Constitution.

15. In other words, the court does not have to play a neutral bystander role. It is duty bound to give full effect to the obligations enshrined in the Constitution.

16. Once more, in this regard, it is respectfully submitted that in a democratic society based on openness, justice, human dignity, equality and freedom, security forces must uphold the Constitution and the rule of law.

17. Indeed the security forces are the defenders, of the freedoms, and indeed hard own freedoms.



18. Naturally therefore, any body that promotes, the observation of the rule of law and standards of constitutionalism, such as the body envisaged in Section 210 of the Constitution, must be promoted and accepted.

The purposive approach

19. The purposive approach to constitutional interpretation is one that is aimed at interrogating and teasing out the core values that underpin the listed fundamental rights in an open and democratic society based on human right and dignity, equality and freedom.

20. The grandmaster of the purposive approach to constitutional interpretation is the Canadian Supreme Court decision of R v Big M Drug Mart Ltd 1984 18 DLR (4th) wherein it was stated as follows:-

“The meaning of a right of freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interest it was meant to protect. In my view, this analysis is to be undertaken, and the purposes of the right or freedom in question is to be sought, by references to the character and larger



objects of the Charter [of Rights and Freedom] itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedom with which it is associated within the text of the Charter. The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.”

21. The purposive approach is key in constitutional interpretation and has found room in a number of key decisions in our jurisdictions. See State v Mhlungu & Others 1995 (3) SA 391 (CC); State v Twala 2000 (1) SA 879 (CC); Ex Parte Attorney General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmSC).

22. It is the duty of obligation on courts, to play a role, in unpacking and translating a progressive ethos around the Constitution. In other words, the judiciary has the role of making the Constitution a come alive and not the judiciary itself becoming an undertaker to the Constitutional values and ethos.



23. Thus, in the famous case of Attorney General v Unity Dow [1992] BLR 119, Aguda J stated as follows:-

“The overriding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain in essential details the picture of which the framers could have painted had they been faced with circumstances of today. To hold otherwise would be to stultify the living Constitution in its growth ... stultification of the Constitution must be prevented if this is possible without doing extreme violence to the language of the Constitution. The ... primary duty of judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity.”

24. The same remarks had been made by Gubbay CJ in Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S) in which the former Chief Justice, observed that the expectation of the masses for a better life were surging to the fall all over the world



and that judges were duty bound to assist in the registration of this aspirations by “moulding in developing the process of social change”.

25. In Smyth v Ishewokunze & Another 1997 (2) ZLR 544, 1998 2 BCLR 170 (SC), the court observed that court of law must at all times interpret right-rendering the provisions of statute in a manner that expands their reach rather than one which diminishes their meaning and content.

26. In other words, a purposive approach must be adopted.

27. In Attorney General, Gambia v Jobe,1 Lord Diplock said:-

“A constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction..”

28. Applying the above to the instant matter, Section 210, is a provision that the framers of the Constitution, intended to advance the cause and case of ordinary citizens abused by the security forces.

29. Our law reports are replete with cases of abuse of individuals by state agents. See for instance Buhera

1 [1985] LCR (Const) 556



http://www.saflii.org/cgi-bin/LawCite?cit=1998%202%20BCLR%20170

North Election Petition 2001 (1) ZLR 295 (H), Hurungwe East Election Petition 2001 (1) ZLR 285 (H), Chauke v Mhare 2005 (2) ZLR 197, Mberengwa Election Petition 2002 (1) ZLR 233 (H), Jestina Mukoko and Another v Commissioner General of Police & Others 2009 (1) ZLR 21 (S), Nancy Kachingwe & Others v Minister of Home Affairs & Others 2005 (2) ZLR 12, State v Muchuru 2002 (2) ZLR 55 (H), State v Mutsengiwa & Others 2002 (2) ZLR 558 (H).

30. That the framers of the Constitution therefore felt that citizens needed to be protected by the board set up in Section 210 cannot be placed in dispute.

Progressive interpretation

31. The court is also enjoined to adopt a progressive interpretation. The doctrine of progressive interpretation was captured by Lord Sankey, who described a Constitution as “a living tree capable of growth and expansion within its natural limits”, in Edwards v Attorney General Canada 1930 AC 124. Thus, if the Constitution is a living tree, according to Lord Sankey, it cannot be “cut down” by “a narrow and technical construction” but should be given “a large and generous interpretation”. See also British Coal Corporation v The King 1935 AC 500.



Generous interpretation

32. As a corollary to the progressive interpretation is, of cause, a generous interpretation. A generous interpretation is one that promotes the freedom and liberty contained in the Bill of Rights.

33. In Minister of Home Affairs (Bermuda) v Fisher 1979 (3) ALL ER 121, Lord Wilberforce defined the doctrine of generous interpretation in the following terms:-

“a generous interpretation... suitable to give to individuals, the full measures of the fundamental rights and freedoms referred to ...” and that the Constitution called for ‘principles of interpretation of its own.’ He went on to say “This is no way to say that there are no rules of law which should apply to the interpretation of a Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used to the traditions and the usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of



interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principles of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.”

34. In casu, the generous interpretation must demand that this court puts on a generous lens in interpreting the Constitution in particular Section 210 of the Zimbabwean Constitution.

35. That same generous and progressive interpretation, demands a dim view to the plethora of excuses manufactured by the Respondents in justifying the inaction in enacting the body that is envisaged in Section 210.

C. THE CASE FOR A CONSTITUTIONAL MANDAMUS

36. In casu, the Applicants seek compliance with the specific provisions of the Constitution by the Respondents. This is the enactment of the law necessary to give effect to Section 210 of the Constitution of Zimbabwe.



37. This court has the powers of issuing a constitutional mandamus. The court did issue a constitutional mandamus in the case of Jealous Mbizvo Mawarire v Robert Mugabe NO & Others CCZ1/2013.

38. Ordinarily, the requirements of a mandamus are no more different from those of a prohibitory interdict. This much was stated in the case of Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S) at 56 B – D wherein the following was stated:-

“An application for a mandamus or “mandatory interdict”, as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established. See Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Another v Executive Committee of the Administration for the Hereros & Others 1984 (4) SA 295 (SWA) at 317E. These are:

1. A clear or definite right – this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended – an infringement of the right established and resultant prejudice.



3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must (a) be adequate in the circumstances; (b) be ordinary and reasonable; (c) be a legal remedy; and (d) grant similar protection.

The locus classicus of the cases which sets out these criteria is, of course, Setlogelo v Setlogelo 1914 AD 221 at 227. See also PTC Pension Fund v Standard Chartered Merchant Bank, Zimbabwe Ltd & Another 1993 (1) ZLR 55 (H) at 63A-C”

39. Ordinarily, the remedy of mandamus is available, to compel the performance of a specific such statutory duty or to remedy the effects of unlawful action already taken.

40. In casu, the Applicant seeks, to compel the performance of a specific statutory duty.

41. The question that arises is whether or not, the Applicant, has shown and met all the requirements of the mandamus as shown by the above cases. That aspect will now be considered.

D. DO THE APPLICANTS HAVE A CLEAR OR DEFINITIVE RIGHT



42. There is no question that the Applicants have a clear and definitive right to bring the instant matter.

43. The Applicants are ordinary citizens of Zimbabwe, and in the case of the First Applicant, he is an individual with complaints that would have been raised against members of the Applicants.

44. The Constitution that we are dealing with makes it mandatory that all constitutional provisions should be complied with expeditious.

45. Thus Section 324 of the Constitution makes it clear that all constitutional obligations must be performed diligently and without delay.

46. The Applicants have described the manner in which laws are brought into being by the Respondents. First the preparation of principles that are taken to Cabinet. Once those principles are approved, the same must be sent to the Attorney General for drafting of a Bill. Once this is done the Bill is then referred to a Cabinet Committee on legislation chaired by the First Respondent. Thereinafter, the Draft Bill is taken to Cabinet before gazetting.

47. The Applicants have contended that this process can take place in under a week and has taken place in under a week in some cited circumstances.



48. The Respondents do not dispute this procedure in respect of which a Bill is made.

49. More importantly, the Respondents pretend that they in fact have a Draft but offer no solution as to why it is taking so long not to enact the Bill in question.

50. The Respondents have no right to kill the Constitution of Zimbabwe by omission and non implementation of the same.

51. Clearly therefore, it is respectfully submitted that the requirements of a mandamus have been shown and therefore the Applicants are entitled to the order they seek.

E. HAVE THE RESPONDENTS BREACHED THE APPLICANTS’ RIGHT TO EQUAL PROTECTION OF THE LAW

52. Section 56 (1) of the Constitution of Zimbabwe states that all persons are equal before the law and have the right to equal protection and benefit of the law.

53. In casu, the point being made is simple. The Applicant is being denied not just protection of any law but protection of the Constitution itself.



54. Article 2 of the Constitution of Zimbabwe reads as follows:-

“2 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.”

55. That the Constitution is the supreme law of the country, means what it means. That it is supreme and therefore binds every organ in Zimbabwe. A fortiori it must be enjoyed by everyone.

56. In dealing with this application, this Honourable Court is urged, to accept that the supremacy of the Constitution itself, becomes a value that needs to be decisively protected within the limits of the Constitution itself. In Executive Council of the Western Cape Legislature v President Republic of South Africa & Others 1995 (4)



SA 877 (CC); the South African Constitutional Court in one of its decision stated as follows:-

“Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it was carried out. It is of crucial importance at this early stage of the development of our new Constitutional order to establish respect for the principle of that the Constitution is supreme. The Constitution itself allows this Court to control the consequences of a declaration of invalidity if it should be necessary to do so. Our duty is to declare legislative and executive action which is inconsistent with the Constitution to be invalid, and then to deal with consequences of the invalidity in accordance with the provisions of the Constitution.”

57. Thus, in denying the Applicants, the benefit of Section 210 of the Constitution, the Respondents are in fact breaching, not just Article 56 (1) of the Constitution insofar as it protects the Applicants but also, denigrating the supremacy of the Constitution.



58. Thus, a constitutional basis, has been made for this Honourable Court to find that:-

(a) The Respondents’ failure to enact the law provided for in terms of Section 210 is a breach of the Constitution of Zimbabwe.

(b) Failure by the Respondents to enact the law necessary to operationalise Section 210, insofar as it relates to giving rights to citizens to be protected by the body envisaged under Section 210, is a violation of the right to equal protection and benefit of the law as defined by Article 56 (1) of the Constitution.

59. The point thus being made is that appreciation must thus be made o the powers of this Honourable Court and of the need to establish right from the word go, constitutionalism and supremacy of the Constitution, as a founding ethos of the new Constitution.

F. CONCLUSION

60. It is respectfully submitted that more than 24 months have passed since the Zimbabwean Constitution became law and for this reason there should be no reason why the order prayed for in casu should not be granted with costs.

DATED AT HARARE THIS 17th DAY OF SEPTEMBER 2015



___________________________TENDAI BITI LAW

Applicants’ Legal PractitionersHMB Chambers

28 Rowland SquareMilton Park

HARARE [TB/om/V3]

TO: THE REGISTRARConstitutional Court of ZimbabweHARARE

And To: CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICERespondents’ Legal PractitionersNew Government Complex2nd Floor, Block ANew Government ComplexCnr. Samora Machel Avenue/Fourth Street

HARARE [4/JUS/930/FC/TM]



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Head… · Web viewthe words used and to deduce from them what any particular section, phrase or word means, ... kunze & Another . 1997 (2) ZLR 544, 1998 2 BCLR 170 (SC),