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Sharon Hofisi Legal Letters
Introduction: Constitutional interpretation has one goal: the need to treat the Constitution as a sovereign in its own right. From our studies on the avoidance doctrine (doctrine) in the past weeks, I’ve just come across a phrase, which is relevant to the arguments on the doctrine, which we were discussing in the past two weeks. Here is the statement: “The end of life as we know it might be the beginning of life as we need it”.

We found out that the Constitutional Court (the Court) is frequently invoking the avoidance doctrine (the doctrine). This article deals with the challenges of the doctrine from a people’s perspective. At a national level, life as we need it is explained by the Constitution of Zimbabwe, 2013 (the Constitution). Observably, the standard that must be set by the Court must be one which uses the Constitution as the measure for judicial reasoning. The Constitution has a definitions section, section 332, which shows that a constitutional matter is one with the following three issues: interpretation, protection and enforcement of the Constitution. As such, every judgment where the doctrine is invoked must show why the issues referred to above must be avoided. A pertinent concern at once arises, a judgment that does not show the three pillars loses its legitimacy.

Let us remember then that if we commit ourselves to constitutional democracy we commit ourselves to its tenets, but at the same time let us be careful lest we who are the custodians of the Constitution add to the casual treatment of the various tenets. The chief of these tenets is human rights. Interpretation demands that the Court’s judges develop methods of constitutional interpretation that are guided by the Constitution. Instead of relying on developments from South Africa and the United States, they must use the Constitution as the starting point.

Predictably, the Constitution has an interpretation section, section 46. The methods of interpretation must start from the Constitution. The first pillar is that a court must give full effect to the fundamental rights. Because the doctrine under review has been shown to be a replica of the dirty hands doctrine, the corollary to this is that judges must also be seen to be upholding the duties of the State institutions that are found in section 44 of the Constitution.

Protection (kuchengetedza in Shona) means that the judge must strive to give an effective remedy. Promotion (Kukurudzira) speaks to the need to enrich the literacy on constitutional rights. Respect (kukudza) speaks to the need for judges to also use right-based approaches in the judgments. Fulfilment of obligations (kuzadzisa) shows that judges must not only flag technicalities, but must ensure that right holders enjoy their rights. And so we see the serious problems behind the use of a doctrine that allows judges to skirt constitutional issues.

The other pillar of interpretation relates to the promotion of the values of the Constitution, particularly the founding values such as constitutionalism, human rights and the rule of law. With respect, the judgments that bear on the avoidance doctrine do not augur well with the above values. The Moyo v Sergeant Chacha and Others case lifts a lid a little bit. The Court knows that the Criminal Procedure and Evidence Act has to be wholly aligned with the Constitution. Admittedly, it was recently amended, but in piecemeal fashion.

Just like in the Majome and Chawira cases, subsidiary law is used to trump the higher law. A human rights-based approach would not allow that. Constitutionalism would again not allow that because it speaks to the need to have a “People’s judge”. The rule of law does not allow such an approach. Basically, the rule of law means rule according to an ordinary law or rule according to a higher law. The rule according to the higher law is to be preferred from a constitutional perspective.

Sadly, the Court has frequently been using the ordinary law to interpret the Constitution. This is dangerous because the Constitution is effectively not being treated as a superior law. Further, Zimbabwe does not have clear and contextualised methods of Constitutional interpretation. Our Courts usually invoke doctrines or rules of interpretation that were developed in other jurisdictions. The subsidiarity doctrine was developed in South Africa and the classical avoidance from the United States of America. Yet in all this, our Constitution must be bigger than any other Statute.

The Concourt must apparently see that the constitutional cases that are brought before it are very serious to warrant a final decision. For instance, in Chawira, the hangman’s absence was one of the many wrong reasons that were used to deny them remedy. The consumer population momentarily bought this justification. But now we have been made to understand that about 50 applicants want the hangman’s job. The same population is now concerned about what would become of those on death row. The avoidance of the merits is now a snare.

If the same death row inmates go back to challenge the death penalty, their case will likely to be dismissed on the basis of mootness. With respect, the pillar of mootness was the one which would have been used in the first place on arguments relating to the pending nature of appeals at the Supreme Court. The other pillar of interpretation deals with the use of international law. The Chawira judgment is silent on international law. The death penalty has been linked to the right to human dignity. Even our Constitution clearly shows that no law may limit this right.

In terms of section 48 of the Constitution, Zimbabwe still needs a law that empowers Courts to impose the death penalty. In the absence of that law, there was need for a theory of interpretation in the Chawira case. Such a theory could only come from the Constitutional Court as the apex Court on rights. The other pillar of interpretation is relevant foreign law. Using the Majome case, can we say cases on the subsidiarity doctrine were relevant? At the surface yes, but constitutionally speaking no.

The Mhlungu decision clearly deals with the doctrine of subsidiarity. Its applicability in South Africa cannot be casually imposed in Zimbabwe. This is because our Constitution has a broad legal standing provision that clearly outlaws the dirty hands doctrine. The other cases such as the Zinyemba, Majome, Chawira, and Moyo cases unnecessarily created some “dirty hands dilemma”. To that extent, the Court has not been using relevant foreign law. Relevant foreign law can only be used where there is a lacuna in our law. Our law is clear on the dirty hands doctrine.

Apart from interpretation, constitutional matter has a protective element. It has been shown above that there has not been a theory of constitutional interpretation that is pitched from a Zimbabwean perspective. The protection of constitutional rights proceeds from a duty of the State. Judges are members of the judiciary, itself a State institution. Technically, they are apolitical but they are constitutional politicians. Rather than using technical arguments to prolong constitutional breaches by State institutions, judges must actively protect the rights of citizens by hearing their cases.

Several matters have been referred to superior courts on the basis of human rights. For instance, we have the Sister Berry and the Mudzuru cases on marriage rights. Arguments on subsidiary laws were raised in the Mudzuru judgment, and the Court dealt with the case. Enforcement is another pillar of a constitutional matter. The avoidance or subsidiarity doctrines unnecessarily create legal uncertainties.

Sharon Hofisi is a lawyer and writes in his personal capacity. Feedback: [email protected] The constitutional matter is not finalised and litigants do not know when they would get a judgment that could be used to remedy a constitutional violation. Worse still given the fact that the Court that invokes the doctrines referred to above is not moved by a right-based approach but by judicial restraint. And a litigant whose rights have been violated will not always benefit from the use of the doctrines. A court does not explain what they mean or their relevance to constitutional law in Zimbabwe.

This is what we are imploring the apex Court to do in all cases. Sometimes it simply states that ‘this is not a constitutional matter’ yet there is nothing from the judgment to buttress such a finding. We also gathered from cases such as Majome, Chawira, Moyo, and Zinyemba that ordinary statutes are used to skirt the provisions of the Constitution (an extraordinary Statute). With a Constitution loudly and clearly showing it liberal nature, the use of the doctrines of subsidiarity and express avoidance is wrong at all costs.

Even though judges are at large to interpret the laws of Zimbabwe, the same cannot hold for their use of doctrines that are alien to the Zimbabwean Constitution. The Courts must be aware that anything said against the litigants could become something said against the interpreter. And if both the judge and the litigant have a clear conscience that, as best as they know how, one is not doing what the Constitution wants us to do in the way that it stipulates and that we are not moved by institutional arguments, both can be quite confident when they face their critics.

Conclusion: From the study on the avoidance doctrines,we saw two streams of thought that yield the same results. We are concerned about indirect avoidance such as the subsidiarity doctrine which gives Courts the power to prefer ordinary statutes ahead of the Constitution. We called it indirect because the Court sometimes treats it as a doctrine that is different from the avoidance doctrine. This distinction is faulted because essentially, constitutional issues are avoided.

Sharon Hofisi is a lawyer and writes in his personal capacity. Feedback: [email protected]