The
first respondent relies on the provisions of section 31K(1) of the Constitution
“which ousts the jurisdiction of the courts in relation to all executive acts
of the President where he has acted on his own deliberative judgment.”
It
is argued that in deciding to call for a referendum on the Draft Constitution,
and fixing the ...
The
first respondent relies on the provisions of section 31K(1) of the Constitution
“which ousts the jurisdiction of the courts in relation to all executive acts
of the President where he has acted on his own deliberative judgment.”
It
is argued that in deciding to call for a referendum on the Draft Constitution,
and fixing the day and time for the holding of such a referendum, the first
respondent acted “on his own deliberate judgment” in terms of the Referendums
Act [Chapter 20:10]. His conduct, in this regard, is the sort of conduct
covered by the provisions of 31K(1) of the Constitution.
Section
31K(1) of the Constitution provides:
“31
K Extent to which exercise of President's functions justiciable -
(1) Where
the President is required, or permitted, by this Constitution, or any other law,
to act on his own deliberate judgment, a court shall not, in any case, inquire
into any of the following questions or matters -
(a)
Whether any advice or recommendation was tendered to the President or acted on
by him; or
(b) Whether
any consultation took place in connection with the performance of the act; or
(c)
The nature of any advice or recommendation tendered to the President; or
(d)
The manner in which the President has exercised his discretion.”
These
provisions are clear and unambiguous.
I
am convinced that the powers given to the first respondent by section 3 of the Referendums
Act [Chapter 20:10], being wide, discretionary and unfettered, fall into the
category of those powers envisaged under section 31K(1) of the Constitution
wherein the first respondent is required or permitted to act on his own
deliberate judgment. That being the case, I conclude that the conduct of
the first respondent, in setting the date of the referendum and the time within
which voters may cast their vote, is not subject to review by a court.
Indeed this is the position that was taken by the Supreme Court in the case of Zimbabwe Lawyers for Human Rights and Anor v President of the Republic
of Zimbabwe 2000 (1) ZLR 274 (SC).
In
Zimbabwe Lawyers for Human Rights and Anor v President of the Republic
of Zimbabwe 2000 (1) ZLR 274 (SC), GUBBAY CJ…, had occasion to make
reference to the import of section 31K(1) of the Constitution with regards
Presidential immunity. At page 278 D - E he stated thus -
“The
section specifies a number of situations in which a court is not permitted to
inquire into the actions of the President. In all other matters, no fetter
is placed upon the court and no immunity is accorded the office of the
President.”
While
the first respondent relied on the above case to support its interpretation of section
31K(1) of the Constitution, the applicants preferred the position taken by
DUMBUTSHENA CJ…, in the case of Patriotic Front - Zimbabwe
African Peoples Union v Ministry of Justice, Legal and Parliamentary
Affairs 1985 (1) ZLR 305 SC.
In
Patriotic Front - Zimbabwe African Peoples Union v Ministry of
Justice, Legal and Parliamentary Affairs 1985 (1) ZLR 305 SC the
learned CHIEF JUSTICE dealt with similar challenges, mainly, whether the
exercise of executive powers by the first respondent is subject to review by
the courts. He concluded that there are some functions performed by the
President, in terms of the Constitution, which are not reviewable. However,
should such prerogatives “be exercised under unlawful conditions or performed
outside the law, the courts…, have a duty to find out whether the facts upon
which the prerogative power was exercised were lawful.”
I
do not think that much reliance can be placed upon the conclusion in that case.
It
appears to me that DUMBUTSHENA CJ was addressing situations in which a
prerogative or executive power had been exercised unlawfully or outside the
law. That is not the position in the present case because the first
respondent is clearly empowered by the Referendums Act [Chapter 20:10] to
decide the date upon which he may wish to hold a referendum. Unlawfulness
is therefore not a factor in the instant case.
Secondly,
the Patriotic Front - Zimbabwe African Peoples
Union v Ministry of Justice, Legal and Parliamentary Affairs 1985
(1) ZLR 305 SC was
decided before the enactment of the present section 31K(1) of the Constitution. The
court could not, therefore, have had the opportunity to interpret the present Constitutional
provision….,.
The
applicants have argued that the executive decision complained of is reviewable
where it can be shown that “the private rights, interests and legitimate
expectations of citizens” have been affected.
In
my view, the provisions of section 31K(1) of the Constitution do not, on
account of their clear and unequivocal import, permit of such considerations.
For
these reasons the preliminary issue must be decided in favour of the first
respondent. The second respondent has not opposed this
application. It will abide by the decision of the court.
Accordingly,
it is ordered as follows:-
1. It
is declared that by virtue of the provisions of s31 K(1) of the Constitution of
Zimbabwe the powers conferred upon the first respondent in terms of s3 of the
Referendums Act [Cap 2:10] are not justiciable.
2.
Consequently, it is ordered that the application be and is hereby dismissed in
its entirety.
3. The first and second applicants shall jointly
and severally, the one paying the other to be absolved, pay the costs of this
application.
