The doctrine of constitutional avoidance as a nemesis to public interest and strategic impact litigation in Zimbabwe: Thesis, antithesis and synthesis

Abstract

The case of Zinyemba v Minister of Lands and Rural Settlement, CCZ 3/16 clearly set the pace for the Constitutional Court’s use of the doctrine of constitutional avoidance. Since then, the Court’s judges have invoked the doctrine in varied forms. As its case load grows, this research looks at the way in which constitutional matters are being dismissed or struck off the roll on the basis of technical arguments. Implausibly, constitutional supremacy is ignored, and judges of calculatingly invoke the avoidance doctrines with astonishing constancy. The practice, as led by the current Chief Justice (CJ), Luke Malaba, is a disappointing one that adds little to the infant jurisprudence on a potentially transformative Constitution. Where the Constitutional Court used reasonable review, it also avoided key constitutional arguments. Likewise, in typical ‘packing the punch’ approach, the Court has been flipping with the other variants of the avoidance doctrine such as judicial deference, subsidiarity, reserving judgments, preference of non-judicial remedies, failure to give reasons or judgments and the presumption of constitutionality. What could have otherwise been a strategic opportunity for this Court to pronounce authoritatively on the merits of key constitutional matters has largely been lost. The three pillars of what constitutes constitutional matters: interpretation, protection and enforcement of the Constitution, have also immensely suffered from the Court’s flirtation with the avoidance doctrine. The doctrine, as a remedy, has been used by Constitutional Court judge, Justice Patel, once. Chief Justice Malaba, as well as Justices Bhunu and Gwaunza, have also used the doctrine. The doctrine has been used in various forms that include the subsidiarity doctrine in the Majome v Minister of Justice, CCZ 14/16 on a challenge to ZBC licensing; reasonable review in Makoni v Commissioner of Prisons and Another, CCZ 48/15 on the death penalty challenge), and expressly in Katsande and Another v Infrastructure Development Bank of Zimbabwe CCZ 113/17 and Chawira and Others v Minister of Justice and Others, CCZ3/17 (death penalty case). In contradistinction, lower courts and the High Court have frequently been referring to the Constitution. They deal with the merits of key constitutional cases brought through public interest or strategic impact litigation. In these cases, the Constitution is not treated as if it is some ‘rebound’ from some broken romance. As such, this study argues that, if the ‘real romance’ is extant, then technical arguments must be sparingly used to avoid or skirt the merits of constitutional cases. It is indeed not fallacious to say, from a jurisprudential position that, ‘romance does not produce an offspring’. It is incontrovertible that the determination of the merits of any case is important in bringing matters to finality. As a result, this research essentially deals with the crucial aspects such as: (i) what is the meaning of constitutional avoidance? (ii) Is the doctrine of constitutional avoidance a fundamental tenet of judicial review or it is a discretionary remedy? How can strategic interest litigation improve the constitutional jurisprudence of a country? The dominant argument is that it may not be awry for the general populace to consider the judiciary’s avoidance stance as a means to encourage the legislature to curtail some of the powers of the High Court judges. The judges of the High Court seem to be quick and innovative in deciding seemingly complex but key constitutional cases. And there are other judicial and non-judicial doctrines threatening the constitutional jurisprudence as well.