11 October 2017

Zimbabwe: The Concourt and the Avoidance Doctrine

analysis

In this study, a scoping view on the doctrine of avoidance is given. The article identifies five key causes of concern. It provides a legal description of the doctrine, and the approach by the Constitutional Court of Zimbabwe (the Concourt) with respect to the interpretation, protection and enforcement of the Constitution of Zimbabwe, 2013 ('the Constitution').

This study measures the Concourt's approach specifically against an interpretive regime which treats the Constitution as an extraordinary statute. The regime is an important tool for monitoring the Concourt's commitment to the three constitutional duties of protecting, promoting, respecting human rights. The Concourt had occasion to deal with the avoidance doctrine ("the doctrine") or its variance in the following cases: Zinyemba v Minister of Lands and Rural Settlement CCZ 3/17, Majome v Minister of Justice, CCZ 14/16, Chawira and Others v Minister of Justice, CCZ 3/17, Katsande and Another v IDBZ CCZ113/17 and Moyo v Sergeant Chacha and Three Others, CCZ 19/17.

There is everything constitutionally specific about the above cases. The cases bear on the applicants' enjoyment of certain constitutional rights in Zimbabwe. The cases are a clarion call to ensure that the approach of the Concourt does not end on technical arguments. The avoidance doctrine simply allows a court to resolve a legal dispute by applying ordinary legal principles, as interpreted or developed with reference to the Bill of Rights, or fundamental rights, before applying the Bill of Rights directly to the dispute in question.

The doctrine has been developed in jurisdictions such as the United States of America and South Africa. The courts, in resolving civil or criminal cases, can avoid reaching a constitutional issue by following an ordinary legal route. There are three types of avoidance namely: ex ante avoidance, which is avoidance in its classical form; in medio avoidance and post ante avoidance. The Concourt largely applies the classical avoidance where it simply avoids the determination of a constitutional case on the basis of its merits.

The Zinyemba case is the first Zimbabwean case where the Concourt invoked the avoidance doctrine. The applicant in that case had been allocated land which was subsequently subdivided. Malaba DCJ referred to the avoidance doctrine and the subsidiarity doctrine (a variant of the avoidance doctrine). He discussed the effect of the South African Act, the Promotion of Administrative Justice Act (PAJA) as explained by Currie et al. Abruptly, the learned judge then invoked the avoidance and the subsidiarity principles as principles which in his own words "discourage reliance on the constitutional rights to administrative justice".

The avoidance doctrine was used as a doctrine which dictates that remedies should be found in legislation before resorting to constitutional remedies. The subsidiarity principle was used to show that norms of greater specificity should be relied on before resorting to norms of greater abstraction. The Concourt made a finding that the applicant had not challenged the constitutional validity of any provision of AJA nor was she seeking to use the constitutional rights to administrative justice to interpret the provisions of AJA.

The Concourt stated that the exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant because she ought to have used the remedies provided for under AJA to enforce her rights to just administrative conduct. With respect, the judgment was wrong from the perspective of an infant constitutional jurisprudence. The learned judge did not provide any justifications of the avoidance doctrine. The overreliance on the avoidance doctrine is strongly criticised because it unnecessarily leads to protracted rounds of litigation (Steinman, 2017).

Further, it leaves litigants in a great deal of legal uncertainty as to the scope of their rights (ibid). The Concourt is an apex court on constitutional issues including property rights. It was obliged to uphold the duties to respect, protect and promote human rights as enshrined in section 44 of the Constitution. This is important especially when regard is made to the fact that human rights are treated as founding provisions or tenets of democracy that are listed in Section 3 of the Constitution. The need to protect human rights is important in this critique if regard is also made to the fact that the Concourt created a serious mistake of splitting the avoidance doctrine from the subsidiarity doctrine.

The split shows how judges of the superior courts can be inclined to using their passive virtues. This is because the conjoined principles are expressive of judicial restraint. Even the invocation of the subsidiarity doctrine as a principle that is separate from the avoidance doctrine was not explained. Apart from its implications on human rights, the Zinyemba case has a bearing on the separation of powers doctrine. There was need for the Concourt to abandon the classical avoidance doctrine as has been the case in countries that are the progenitors of the doctrine.

There was even no need to move towards strategic avoidance which seeks to encourage the three pillars of the State to dialogue over the avoided issues. Such a dialogue allows for the resolution of disputes through other political branches than judicial intervention. This route was difficult on the part of the applicant because the responsible minister had already made a decision which would work to the detriment of the applicant. The implications of this case are several. This case provides researchers with the skeletal reasons on the avoidance doctrine.

The Concourt went on to invoke the avoidance doctrine in its express or variant forms in the Majome case. Expressly, the avoidance doctrine was used in the Chawira case. This author had occasion to provide a critique of the Chawira case. Bhunu J directly invoked the avoidance doctrine to dismiss a case where 14 death row inmates were awaiting execution for lengthy periods, some as long as 18 years. The argument raised by the applicants was that the prolonged wait, coupled with the appalling conditions under which the applicants have been incarcerated amount to cruel and inhuman treatment or punishment for the purposes of Section 53 of the Constitution of Zimbabwe.

The Chawira judgment was used as a judicial precedent by the Judge of the Constitutional Court, Justice Gwaunza in the Katsande case cited above. The variant forms of the avoidance doctrine, especially, the subsidiarity doctrine, were cited in the Majome case and Moyo cases cited above. The cases are important in showing how the Concourt exercises its judicial review powers to deal with the justiciability of fundamental rights. The next article will provide a critique on the other cases from the perspective of the entrenchment theory on justiciable rights.

Sharon Hofisi is a lawyer and writes in his own capacity.

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