An analysis of the practice and procedure for referral of constitutional matters to the constitutional court in terms of section 175 (4) of the constitution of Zimbabwe, 2013

Abstract

After nineteen amendments to the Zimbabwean Constitution of 1980, Zimbabwe came up with ―a people driven‖ Constitution in 2013. The Constitution has been considered progressive particularly with the now expanded Declaration of rights which has both horizontal and vertical application per Section 44 of the Constitution. The 2013 Constitution reserved Section 24 of Constitution of Zimbabwe of 1980 which dealt with referral of matters to the Supreme Court per Section 175(4) of the Constitution of Zimbabwe 2013. There are however patent differences between the 1980 Constitution and the 2013 Constitution in respect of referral of constitutional matters to the Constitutional Court. While Section 24 of the erstwhile Constitution provided for referral of matters to the Supreme Court, Section 175(4) of the Constitution provides for referral of matters to the Constitution court whose jurisdiction is espoused in Section 167 of the Constitution. The availability of referral procedure of matters to the Constitutional Court is a plus in enforcement of human rights at least in theory. However, there have been challenges as regards to the utilisation of that procedure in seeking to enjoy available constitutional remedies. The Constitutional Court has adopted a capricious approach in constructing the procedure as it is loath to entertain such litigants. This has thus necessitated the writer to assess the practice and procedure which the Constitutional Court of Zimbabwe has adopted in dealing with referrals. This entails checking what the law is, how the Constitutional Court has interpreted it and the challenges that are presented by the procedure if any. Comparison will be made with the approach adopted in South Africa, Kenya and Namibia‘s ways of protecting fundamental constitutional rights through the medium of a Constitutional Court or otherwise the court with the jurisdiction to hear Constitutional matters in a particular jurisdiction.