Read statement by Zimbabwe Human Rights NGO Forum
At the start of this new and important decision for constitutionalism in Zimbabwe, Harare high court judge Jacob Manzunzu commented that the 2013 constitution was an ‘epoch’ in the life of Zimbabwe. Among other features, however, it brought obligations on certain institutions and office bearers.
The judge was dealing with an application by Allan Markham, a member of the opposition in parliament. Markham pointed to the fact that the constitution required parliament to pass a law aimed at curbing corruption among public officers, and asked that the court impose a deadline to meet this constitutional demand.
Judge Manzunzu said that in his case, Markham had examined the ‘inadequacy in legal tools of addressing corruption’ in Zimbabwe. He had pointed out that the respondents, namely the minister of justice, legal and parliamentary affairs and the attorney general (AG), had not carried out their constitutional obligations to deal with potential corruption by acting ‘diligently and without delay’ to ensure legislation was passed to help curb the vice.
‘The simple point he is making is this: section 198 of the constitution creates certain obligations for the respondent which obligations must … be performed diligently and without delay. [He] seeks a declaratory order that the respondent breached the constitutional obligation created by section 198 and must be ordered to abide with the same within a given time frame.’
Section 198 says that an act of parliament ‘must provide measures’ to enforce good governance including the principles of accountability and transparency in relation to those who hold public office.
In particular, the section says that the law should require public officers to make regular disclosures of their assets. It should also establish codes of conduct for public officers, specify the standards of good corporate governance that must be observed by government-controlled entities, and other commercial entities owned or wholly controlled by the state and it should make provision to discipline anyone who contravened the provisions of this chapter of the constitution, or of any code of conduct or standard establish for public officers.
Clearly, section 198 created a constitutional obligation to enact a law along these lines, and the judge noted that the minister and the AG agreed with this interpretation. However, section 324 of the constitution said that all constitutional obligations had to be carried out ‘diligently and without delay’.
So, had there been a delay in acting on this obligation? Markham had initially filed his application seven years after the constitution came into existence and there was agreement among all the parties that the obligation under section 198 hadn’t been fulfilled.
Judge Manzunzu said the real issue was who had responsibility to carry out the section 198 obligation? The minister and the AG did not deny outright that they ‘contribute to the legislative process’, but they argued that the process was a collective responsibility and that other players, like parliament, the president and cabinet, all ought to have been named as respondent parties by Markham.
Markham should not have held them ‘at ransom when there are so many other functionaries involved in the law-making process’. While counsel for the minister and the AG argued that section 198 didn’t create or impose any obligations on them specifically, the judge said he had to disagree: ‘Here we are talking of a minister responsible for the Ministry of Justice and Parliamentary Affairs and the AG who is legal advisor to the government.’
It was true that they were ‘not the only players in the legislative process’, but they had not shown that they should not be cited as respondents at all. They wanted the application dismissed on the basis of non-joinder of other parties, ‘but this cannot be a cause to defeat the application unless wrong respondents were cited altogether.’
In an effort to ‘exonerate themselves’ from the constitutional breach, the respondents had outlined government efforts to give effect to the constitutional requirements. These efforts were ‘commendable’ said the judge, but ‘the fact remains that constitutional obligations must be performed diligently and without delay.’
‘A delay of seven years is by no means classified as reasonable.’ Moreover, they had given ‘no indication, in terms of time frame, as to when the obligation will be performed, apart from the fact that research has started and was meant to be completed by 30 April 2021.’
In an earlier case, Zimbabwe’s constitutional court had warned public office bearers that they ignored their constitutional obligations ‘at their own peril.’ It had said that the ‘state, its organs and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law.’
Clearly, the minister and the AG had failed to act ‘within a reasonable time’ and were thus in breach of their constitutional obligation, the court concluded. Therefore, Judge Manzunzu ordered that the minister had to ‘gazette the Bill’ envisaged in the constitution, without three months.
But this is not the only effort to secure parliament’s compliance with constitutional obligations to set up a mechanism to ensure good governance and curb corruption. According to a statement by the disclosed via an official statement issued by the Zimbabwe Human Rights NGO Forum, in June, another high court judge, David Mangota, ordered the Minister of Justice, legal and parliamentary affairs and the AG, to craft a law that would ‘stipulate a code of conduct’ for the country’s vice-president, as well as cabinet ministers and deputy ministers.
The application was originally brought by Nyasha Chiramba, a law student at the time. Chiramba pointed out several recent high-profile scandals including matters involving a deputy minister and a former vice president. The scandals included sexual misconduct and abuse of state resources, and had shocked Zimbabwe.
In that matter, the court similarly found that the long-awaited law was overdue, particularly since the constitution had been promulgated nine years previously. As with the latest case, Judge Mangota ordered the respondents to draft the bill and submit it to cabinet within 45 days.
Both decisions must be welcomed, and every reader concerned about good governance in Zimbabwe will surely hope the government does indeed respond and meet the time deadlines set.
But there is something further to note about the latest decision. The matter was heard in September 2021. Judgment was delivered on 12 October 2022. Given that it is a relatively simple matter, amounting to just 1800 words and barely six typed pages, the question has to be asked why it has been so long in the making. The fact that judgment took so long means government has been able to delay for yet another year, without implementing this fundamental requirement to ensure that crucial oversight mechanisms are in place.