A country waits: when will Zimbabwe’s constitutional court give its long-delayed decision?

22 February 2019 · Carmel Rickard

PROMPT delivery of decisions is seen as so important that some African countries even discipline judges who do not give judgments within a reasonable time. But in Zimbabwe, the constitutional court has still failed to hand down a crucial judgment two years and eight months after hearing. This in a country where the maximum delay tolerated by the judicial code of ethics is six months.

WHILE the country waits, Zimbabwe’s constitutional court judges are still considering whether to tell parliament it must obey the constitution.

The court’s delay follows a case brought by the local legal information organization, Veritas, complaining that a key section of the constitution had not been implemented more than five years after the country’s supreme law came into effect in 2013.

Veritas argued that s 210 of the constitution provided for the establishment of an independent body to deal with complaints against the police and other elements of the country’s security forces. But parliament has ignored its constitutionally-mandated duty to establish such a body.

Eventually, Veritas brought an application in the constitutional court, argued during January 2016, calling on government to implement s 210. The organization said that a Bill, setting up the independent complaints’ mechanism as envisaged by the constitution, should be gazetted by parliament.

In its comment issued this week the organization said that during argument of the case, the bench had appeared sympathetic with the case presented. The only question raised by the court was the appropriate deadline to be given to government to implement this section. When the court asked if a six-month deadline would satisfy the two sides as a compromise, the parties agreed. Judgment was reserved, but nothing has since been heard from the court by way of an order or a written decision.

Veritas said that the need for such a mechanism was obvious. In any country the police and defence force formed the state’s “coercive arms”, used by government to enforce obedience to the law and the maintenance of public order. Since the police and defence force might use a level of force there would “inevitably” be complaints. It was thus in the interests of the public and of the security services themselves that these complaints could be investigated “impartially by an independent body”.

Explaining the problems caused by what it called an “inexcusable delay”, Veritas said the absence of a complaints mechanism had “seriously prejudiced countless people” who were unable to have complaints properly investigated.

Giving the example of post-election violence in Harare during which six people died after police opened fire on protesters, Veritas said if the complaints mechanism were already in place before the incident, demonstrators might have had more respect for police, police would have hesitated to call in the army, and the army would have acted with more care, knowing that they would be held to account.

In addition, “relatives of the deceased could have turned to (the independent complaints mechanism) for a proper investigation of the shooting, instead of having to rely on a commission of inquiry which lacks investigatory powers beyond summoning and questioning witnesses.”

Clearly, since the government was reluctant to set up such a mechanism, the court needed to issue an order to that effect. The constitutional court, which had heard the matter, was “above all courts” responsible for upholding the constitution and ensuring the government obeyed it.

The delay was inexplicable in a case that appeared to present no difficulties. It also ran counter to the judicial code of ethics which said where a court could not deliver a decision immediately, it should normally do so within 90 days or, in “unusual and exceptional circumstances” within 180 days.

Asked for comment on the delay in this matter, Dr Justice Mavedzenge, a Zimbabwean academic based at the Democratic Governance and Rights Unit at the University of Cape Town, said it was a sad case of abdication of responsibility. He said no excuse could justify such a long delay in delivering the decision in such an important constitutional matter.

“This does not reflect well on the constitutional court. There is no way our constitutional democracy can grow if the court operates like this.”

In SA, meanwhile, this week saw high court judge Moses Mavundla appear before a judicial conduct tribunal to explain his failure to deliver judgments in reasonable time. In some of the worst examples examined by the tribunal the decisions were delayed “more than two years” after hearing. One of these concerned an important rights question: whether it was constitutional to stipulate that eligibility for state pension grants was from 65 for men and 60 for women. The tribunal heard that Judge Mavundla reserved judgment on this issue for two years and six months.

Carmel Rickard

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