Sharon Hofisi Legal Letters
In the not so distant past, this author wrote about instances where the Constitutional Court (Concourt) has been ending on technical arguments in public interest litigation (PIL) cases.

The Concourt has either been expressly invoking the constitutional avoidance doctrine (CAD) or its variants such as subsidiarity, alternative remedies.

In most countries PIL is used to improve the jurisprudence on economic and social rights (Ecosoc). Zimbabwe used to have a Constitution that only made civil and political rights justiciable.

By making rights justiciable, litigants are empowered to approach courts of law to seek enforceable remedies.

Because of the close link between constitutional law and administrative law, first in that the two branches of law are frequently referred to as public law; and, secondly, because they largely promote both vertical and horizontal accountability; it is argued in this think piece that PIL contributes to the jurisprudence on justiciability of Ecosoc rights.

For starters, the 2013 Constitution (hereinafter referred to as the Constitution) entrenched Ecosoc rights. Such rights relate to health (Section 76); education (Section 75), housing (Section 74) and water (Section 77).

PIL, usually by lawyer networks, civil society organisations, political parties, or Government-oriented non-governmental organisations can produce positive impacts on social, economic and political policies.

Our courts have managed to make some progressive determinations on some of the provisions such as water rights (Farai Mushoriwa v City of Harare). However, the water policy has not really changed notwithstanding the progressive judgments.

Added to this is the delay in finalising the appeal against the Mushoriwa decision. It is argued in this piece that courts must urgently develop rules relating to PIL at least considering the theory of irreparable harm in PIL cases.

Similarly, courts have also been reluctant to exercise their discretion judiciously so that they hear technical arguments together with the merits of the cases before them.

Ideally, this has threatened the constitutional supremacy espoused by the Constitution. Actually, this has worked to the detriment of constitutional jurisprudence.

Added to this are many instances where courts take a narrow view of what they would frequently term judicial notice. The doctrine of judicial notice has never been developed. PIL is greatly affected in this regard.

Clients are the kingpins. Right clients are difficult to fight. The cases are by nature complex. The impact or likely impacts of social policies are not easy to assess before the policy comes into operation.

In this milieu, it is disturbing to note that it has also become fashionable for lawyers to raise preliminary points in almost every PIL or general case: Court applications, urgent chamber applications at the High Court, or constitutional cases at the CC. Superior courts have been quick to come up with practice directions on various legal aspects such as setting down of matters, pre-trial conferences and so on.

When litigants go to court, the first important consideration to make is whether they are qualified to appear before a court of law.

The Constitution broadened legal standing and allows individuals to approach the court of law to institute proceedings in the interest of the public.

Section 85 of the Constitution, which is framed under the heading of “Enforcement of fundamental human rights and freedoms”, empowers people to act in their own interests; on behalf of those who cannot act for themselves; those acting as members, or in the interests of a group or class of persons; any person acting in the public interest; and any association acting in the interests of its members.

This article deals with public interest litigation (PIL) and its role in shaping policy.

Although the Constitution allows litigants to approach the Court using PIL, it does not define PIL in section 332, which is the definitions section.

It does not also define what “public interest” means.

This leaves judicial officers at large to consider what they think amounts to “the interests of the public”.

Most common law jurisdictions have statutes which define certain issues under their definitions section.

PIL is, however, not usually defined in any statute.

Litigants and the courts rely on the perceptions of the public.

If a case is likely to generate a negative perception, depending on the cause for litigation.

If the cause for litigation is well-grounded, the case has a huge impact on the public.

PIL is basically defined as “the legal action brought to protect or enforce rights enjoyed by members of the public or large parts of it (Karugaba, 2005).

The best approach was laid out in Thera v Union of India and others, 1991, decided in 1992.

The approach was to start from defining litigation, and then using PIL as a corollary to that.

Litigation was taken to mean a “legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy”.

Put simply, a litigant is someone who must end up in a court of law and must go to court to seek a remedy. In terms of Section 85 of the Constitution, a person can ask the court of law to either make an award of compensation or grant a declaration of rights.

It is also clear that a litigant who uses PIL to approach a court is enjoined to clearly demonstrate that he is utilising Section 85 (1) (d) of the Constitution which speaks to PIL.

Failure to expressly mention this aspect in the court papers may cause the court to decide the case as it deems fit. In the Thera case cited above, PIL was lexically considered to mean “a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected”.

The importance of clearly indicating the need for the public interest aspects is clear: PIL creates an obligation for a court to avoid judicial restraint-whether institutional or self-restraint. The litigant is taking law from the judge to the people.

Above all, PIL itself is fostered by judicial activism. This is why courts in most countries have been loathe to accept litigants whom they consider to be “(i) mere busybody or(ii) a meddlesome interloper or (iii) wayfarer or (iv)officious intervener without any interest or concern, except for personal gain or private profit or other oblique consideration.

In the Thera case above, it was stated that such people cannot be allowed to abuse the court process by initiating vexatious or frivolous litigation.

Well, this article will not embark on what is meant by “frivolous and vexatious”. Suffice to say for Zimbabwe, such a test was considered in Martin v Attorney-General & Another where Gubbay CJ (as he then was) when he was dealing with the interpretation of Section 24 (2) of the Lancaster House Constitution.

What becomes apparent from the above is that litigants and their lawyers must properly follow the rules; identify the section of the public which stands to benefit; properly lay out the facts and the law that can assist the court in making an informed decision; and must clearly ask for a remedy that is enforceable at law.

Because of the growing trend where the Zimbabwean Concourt has been avoiding the merits of constitutional cases that are initiated using PIL, litigants have to pay special attention to the procedure expected by the apex court.

The Concourt has been invoking the constitutional avoidance doctrine (CAD) with amazing consistence. For instance, the Concourt has been using variant forms of the doctrine of CAD coloured under subsidiarity (in the Majome case) to end on technical arguments. In the Chawira case (death penalty), the Concourt expressly invoked CAD and used it to deprive the inmates of the remedy that they were seeking.

Although this author strongly argues that the Concourt was wrong in invoking that doctrine in Chawira, the Concourt used the Chawira finding as a precedent in the Katsande case (labour case). Litigants have to consider the concerns of the judges if their PIL cases are to succeed.

Such concerns from the bench seem to hinge on the use of Section 85 of the Constitution. A litigant must also be able to cite the correct respondents, abide by the rules of the court and properly draft the remedy sought.

Some insight in this regard can be obtained from the Black’s Law Dictionary which shows that PIL does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question.

Strategically, PIL has been used to influence social policy in fields such as health, environment, housing, land, education and gender (Gloppen, 2005). South African courts have been on the lead in innovatively balancing between the needs of the litigants and ensuring that courts resolve disputes within the bounds of the law.

Important cases include the Grootboom case on the right to housing and the Treatment Action Campaign case on the treatment to prevent mother-to-child transmission (MTCT or PMTCT) of HIV/AIDS.

The court must be appraised of the nature of PIL. Zimbabwe’s legal system is adversarial in nature. We can talk about adversary litigation when a private litigant or her lawyer goes to court on her behalf. This is not the case with PIL.

In Bandhua Mukti Morcha v Union of India Air, 1984, Justice Bhagwati stated that PIL was “not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.

Zimbabwe used to have a narrow legal standing before 2013. Under a broadened legal standing, superior courts and litigants in PIL must take a leaf from the following considerations from the Legal Blogger (2011).

Firstly, courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

Secondly, instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court (Supreme Court and Concourt) to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.

Thirdly, the courts should prima facie verify the credentials of the petitioner (or applicants) before entertaining a PIL.

Fourthly, the court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. Fifthly, the court should be fully satisfied that substantial public interest is involved before entertaining the petition.

Sixthly, the court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. Further, the courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury.

The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

Lastly, the court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

From the foregoing, it is argued in this article that courts must also be prepared to think beyond the courtroom – and must see the broader impact of Ecosoc and political rights litigation. Zimbabwe’s jurisprudence on such rights is still in its infancy.

The judges of the superior courts (SC, Concourt and High Court) must always be prepared to appreciate the impact that a progressive social right judgment can have (as was the case with Loveness Mudzuru and Another v Minister of Justice and Others).

This will influence social policy. Although it does not mean that the situation will change on the ground or that the judgment will be complied with or immediately reflected in legislation or social policy, judges must at least move away from the disturbing practice of ending on technicalities.

  •  Sharon Hofisi is a lecturer in Administrative Law and writes in his own capacity. Feedback: [email protected]

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