Compliance with the Constitution is a must

Courts, like the Supreme Court (above),  are there to transparently interpret the law and help resolve misunderstandings

Courts, like the Supreme Court (above), are there to transparently interpret the law and help resolve misunderstandings

Nick Mangwana View From the Diaspora

In the world we all live in people serve their own interests and in doing so they manipulate rules and make some up as they go along. It is only national constitutions that intercede with impartiality and no other vested interests.

“Compliance with that Constitution is a must, that’s the start of the rule of law…” boomed President Mugabe at the celebrations held at Great Zimbabwe. There are two points that really stand out. Firstly, he said that it is only the beginning of the rule of law. Secondly, he said that it is a must. He also used “compliance” emphasising that this is not negotiable.

Most organisations such as voluntary associations, football clubs, charities, political parties, pressure groups and other associations like the Zimbabwe National Liberation War Veterans’ Association (ZNLWVA) have constitutions. Compliance with that constitution is a must. And compliance with that constitution is the beginning of the rule of law. This is not negotiable that is why the term compliance was used by the President. Constitutions are meant to set conditions for the use of power, lay down obligations as well as establishing boundaries within which everyone has to operate. Powers must be exercised within set boundaries without which power will most certainly be abused.

Whenever people talk of governance, be it within the corporate or private setting or the State, this is what they are talking about. When someone pushes those boundaries, there is normally a way to resolve those disputes through internal processes. But if the dispute is subversion of that same constitution which renders it almost moribund, then it is nearly impossible to use that same constitution internally to mediate the subversion. Third party intervention is then needed.

It is noted that an organisation like ZNLWVA has its foundation in organisations that belonged to Zanu-PF or rather ZANLA and ZIPRA, which were the army of today’s Zanu-PF. So because of that they have remained affiliates of the party but are surely not subject to the party’s constitution. They have their own constitution and are given prominence in the national Constitution by Section 23. This makes their own constitution even more amenable to mediation by the courts.

One cannot either ignorantly or brazenly violate the very foundation of their own organisation and when someone says let’s go to court to establish who is right and who is wrong, they say, “No, don’t do that. Let’s just talk about it.” As they are talking about it assets are pilfered. In instances like this there is only one avenue available to the parties. That is going to the courts to seek restoration of constitutional order.

Because every court respects every constitution that does not fall foul of the provisions of the national Constitution, the court will usual make it a must that they comply with their own constitution. Any conduct by anyone which is contrary to that constitution is not only wrong but becomes illegal and therefore invalidated. By so doing the supremacy of the national Constitution is established above everything and everyone that is within the borders of Zimbabwe including private associations.

There is no doubt that seeking a solution to disputes through mediation, arbitration and conciliation is a way of narrowing the gulf between parties and if successful would result in some mending of relations going forward. It also saves money by avoiding legal costs but there are cases like the one in point where moneys and stewardship of the assets belonging to thousands of contributors make the case too urgent to even contemplate voluntary conciliation.

Courts are there to administer justice without fear or favour. They are allowed to intrude when these organisations start to flout their own rules and ride roughshod with the decency that comes with constitutionalism. Constitutionalism puts checks on absolute power. It is only those that want to abuse discretion that have a problem with those that seek legal remedies accorded to them by the supreme law of the land.

Is it not strange that the same people that put pressure on others not seek recourse in courts for disputes are the same highly litigious folks that rush to assert their own rights at the slightest hint of an infringement? Why then do they find it as lacking moral stature when others seek refuge in the legal depository of the courts?

Every citizen is allowed to be contemptuous of any organisation that does not recognise the inalienable paramountcy of constitutionalism. So to entertain the romantic notion that when real disputes emerge in organisations like the ZNLWVA where stakes are very high people should shun the courts and opt for some non-obligatory third party dispute resolution scheme rather than court action is more of an aspirational fantasy than a pragmatic reality.

They say only a criminal should fear the police (this may not hold true if the current police behaviour is anything to go by). Likewise seeking the insularity from the national courts is only doing so because they know their actions would not stand the test of constitutionalism. Like the President intimated, you cannot have the rule of law without constitutionalism.

The opposition MDC-T ran into the same problem in Bulawayo where they wanted to use political discretion over a legal matter in the dispute between Gift Banda and Matson Hlalo. Whilst it is not within the purview of this piece to discuss the ins and outs of that particular case, it is sufficient to say that the attitudes that the courts should not mediate in disputes in local associations is plainly wrong.

Most disputes in organisations, no matter what business the organisation is, have politics involved. Therefore, there are local interests and sympathies within that organisation and the adjudication that is carried out has a lot to do with vested interests. It is only the courts which are impartial arbiters in these cases. An ideal situation is that everyone lives harmoniously and there are never disputes in organisations. But that only happens in utopia.

In the world we all live in people serve their own interests and in doing so they manipulate rules and make some up as they go along. It is only national constitutions that intercede with impartiality and no other vested interests.

Section 2 of the Constitution of Zimbabwe asserts the supremacy of that Constitution over “any law, practice, custom or conduct”. It further says any conduct not consistent with it is invalid to the extent of that inconsistency. Why then do some people fear going to court to test their positions (over and above the cost argument)?

People should not be manipulated to think that when they seek a court’s intervention they are doing something wrong. It is a contention of this column that those that take their disputes to the media are the ones that are wrong and not those that take them to the courts for adjudication. It is those that take them to the media where reference can be made about washing dirty linen in public. Of course, even those that choose public gatherings to air their dirty linen are also wrong. This does not and should not apply to those that go to the courts.

Most registered organisations are sovereign. They make their rules and constitutions as well as their codes. Within those systems there are dispute resolution systems embedded. Should someone fall short of those then that sovereignty has to be subjected to the supremacy of the national Constitution because there are a lot of people in this world who love making rules and who hate following them. That also adds to the fact there are always political dimensions and intricacies to disputes as said earlier.

The intervention by the courts on internal disputes in organisations should not always be seen as third party interference. Surely, the closest relationship between parties is the marriage one. And courts mediate daily in marital disputes in different ways. This is one where linen can be dirty both literally and euphemistically. And if it is pertinent for the court to mediate in such delicate relations how much more necessary is it in disputes within legal personae?

How about a situation where one makes a fanciful claim to now be a head of an organisation which has its own established leadership? That frivolous claim is so scatter-brained that to sit across a table with them in front or non-formal arbiter is to give them undue relevance and will also promote and encourage that type of behaviour.

No matter who you are when you go into negotiation with somebody who should have no claim at all they will come out with something. This is because mediations and conciliation talks hardly have a “winner takes all”. They will therefore come out in a better position than they were before they came to the table.

So asserting a frivolous claim is a way of advancing one’s position. It is in matters like that when there is nothing to talk about but to get the court to order everyone back to their original corners. In the current political events in the country there are situations like that. That is one of the major reasons why there is the concept of judicial independence.

Courts are there to transparently interpret the law and help resolve misunderstandings. There is completely nothing wrong in seeking their interven- tion.

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  • PinKK Nguruve

    Fat Nicky,

    PLEASE pay someone who is literate in the English language to ‘edit’ and correct your grammar, before you post any more articles.