One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.
For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:
“Power tends to corrupt, and absolute power corrupts absolutely!”
John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:
“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”
Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.
To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.
However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.
This is why it has been said that:
“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.
This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”
It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.
At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.
However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.
Herein lies the nub of this matter.
Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.
Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.
It is regretted that this approach was not followed.
FACTUAL BACKGROUND
The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.
The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.
Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.
The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.
It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.
The application is opposed.
The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.
The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.
The applicants, in their final submission to this Court, are seeking the following relief:
1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.
2. The failure by the respondents, to enact the law to bring into 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. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.
ISSUES
The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.
On the merits of the application, three questions arise and they are the following:
(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.
(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.
The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.
PRELIMINARY ISSUES
Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.
Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.
THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE
The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'
It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.
Neither does he sign the affidavit which is signed by the first applicant.
It does not end there.
The founding affidavit of the first applicant then purports to tell the story of both the applicants.
This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”
It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:
“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”
It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.
From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.
Therefore, the founding affidavit before the court is that of the first applicant.
The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.
Thus, effectively, there is no affidavit placed before this Court by the second applicant.
The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.
Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:
“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”
Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.
Further to that, and more seriously, the applicant's affidavit also makes serious allegations against persons who are not cited as parties to the application. Neither were they served with the application to enable them to answer to the allegations made therein.
The founding affidavit, at paragraphs 8.4 to 8.12 (inclusive) alleges that certain individuals believed to be members of the security sector terrorised the first applicant and his family. It alleges vicious assaults and intimidation which resulted in the death of some of the first applicant's family members.
It is now well established at law, that, in the face of such serious allegations, the persons whose conduct is impugned ought be cited and afforded a chance to put across their own case.
In view of the fact that this has not been done, the allegations should be struck out, and, paragraphs 8.4 to 8.12 (inclusive) are accordingly struck off the record.
The second applicant then purports to affirm the first applicant's affidavit through a supporting affidavit that merely states, that, the second applicant confirms the first applicant's averments and makes them his own. In addition, the second applicant deposes to an answering affidavit in circumstances where he has not deposed to a proper affidavit.
That cannot be.
This Court ought not to consider it, the answering affidavit of the second applicant, as it stands on nothing.
It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed (hereinafter 'Herbstein & Van Winsen or the Authors')…, where the authors stated that:
“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein; and, that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.”
From the above remarks, it is clear that the second applicant's replying affidavit ought to be struck out as well.
It is pertinent to note, that, the second applicant's answering affidavit, of five pages, purports to answer to a number of issues, that include locus standi, and, a substantial portion of it relates to section 210 of the Constitution.
Therefore, if struck out, in addition to other anomalies identified, this Court is left with very little on which the application is premised and from which this Court ought to be informed.
However, because the application raises the issue of legality, the court would want to be slow in dismissing such an application offhand, even in the face of these glaringly gross technical glitches, notwithstanding the invidious position which the few remaining valid threadbare averments place the court in.
The application seeks to enforce the constitutional obligations as set out in section 210 of the Constitution, and this Court, as the apex court on constitutional matters, is equally obligated to see to it that constitutional obligations are fulfilled.
