A conceptual expose of public interest litigation in post 2013 Zimbabwe

Abstract

Zimbabwe recently witnessed a new constitutional phase through the enactment of the new Constitution, which saw the introduction of the concept of Public Interest Litigation, (hereinafter referred to as PIL). Zimbabwe’s constitutional framework is earmarked by a broadened Bill of Rights. The Constitution is the Supreme Law of the Land conferring rights on legal persons a forum to vindicate breach of the same. Zimbabwe’s transformative constitutional project is grounded in the Constitution’s Founding Values. The progressive nature of the dispensation is premised upon Chapter 4 (the Bill of Rights), and, in particular, Section 85 of the Constitution.

Crucially, a key aspect in every constitutional democracy is the justiciability of human rights. Section 85 of the Constitution entrenches this philosophy. Subsection (1), liberalizes the traditional concept of legal standing traversing the blinkered common law rules of legal standing by allowing any person to approach a court of law in the public interest. This provision contradicts the traditional notion calling for a rigid application of rules of legal standing through the direct and substantial interest test as sanctioned in Section 24 of the Lancaster House Constitution.

What now boggles the mind is the proper meaning of PIL within the purview of Section 85 (1) (d) and whether or not the way it is couched in our Constitution is sufficient to achieve the ideal? If one tries to understand the nature and scope of PIL within the purview of Zimbabwean decisions brought under Section 24 of the previous Constitution: Law Society of Zimbabwe v. Minister of Justice & Parliamentary Affairs & Anor12, In re Wood & Anor13, Ruwodo N.O. v. Minister of Home Affairs &Ors14, Retrofit (Pvt) Ltd v. PTC & Anor15, United Parties v. Minister of Justice, Legal and Parliamentary Affairs &Ors16, Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General &Ors17, Minister of Lands &ors v. Commercial Farmer’s Union, one will be left with a limited appreciation of the functionalities of PIL in Zimbabwe.

In other words, the Zimbabwean courts restrictively interpreted legal standing to encompass persons who had a direct and substantial interest in the matter, ratepayers, associations, class actions, and any person in cases of unlawful detention or harbeas corpus applications, among others. GUBBAY CJ (as he then was) in the United Parties case, held that:

...S 24 (1) affords the applicant legal standing to seek redress for a contravention of the Declaration of Rights only in relation to itself (the exception being where a person is detained. It has no right to do either on behalf of the general public or anyone else.

Are GUBBAY’s sentiments still applicable in the new constitutional dispensation? The previous constitutional legal framework discouraged efforts to practice PIL in Zimbabwe.Thus, PIL forums opted for the provision of legal aid to victims of human rights violations because the terrain was not conducive. Is this all what PIL entails? No. The functionalities of PIL are more comprehensive. PIL covers a large spectrum, which include inter alia, legal aid, clinical legal education, establishment of PIL law centres, judicial activism, collaborative and investigative litigation, non-adversarial litigation, epistolary jurisdiction, extended legal standing, as embraced India. However, despite the limited scope of PIL in Zimbabwe, PIL organizations have managed to assist hundreds of victims of human rights violations through free legal aid services.