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MIDLANDS STATE UNIVERSITY

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW

REG NUMBER: R179311B

NAME: TATENDA

SURNAME : MADAMOMBE

LEVEL: 1:2

MODULE CODE: 107

MODULE: CONSTITUTIONAL LAW

LECTURER: MR V. MUTATU

With the aid of case law, discuss the constitutional


principle of Rule of Law in Zimbabwe since 1980.
The principle of rule of law as stated in the above is one of the constitutional principles thus
the principle becomes one of the elements which form the basis of constitutionalism. It has
been argued that constitutionalism is the belief in restraint of governmental power by way of
a constitution1, hence, it is the constitution which must outline how governmental power is to
be limited. One way is by pledging adherence to the principle of rule of law. The
Zimbabwean constitution in terms of section 3(1)(b)2 and the preamble3 shows that the
country recognising rule of law and adheres to it. Adhering to the principle means adhering to
the elements and features which explain the presence of rule of law in the country, a country
can still adhere to the principle of rule of law even if there is no a precise provision like that
named above. This was the case in the old law. Among the ideal characteristics of a society
governed by the rule of law, it was observed that there would be a prevalence or observance
in such a society of the independence of the judiciary and the doctrine of separation of
powers4. Rule of law also entails equality before the law5. Protection of human rights is also
another feature which explains the rule of law.6 The question of the content of the law was
observed by some scholars basing on the grounds that adherence to an unjust law does not
suffice, instead, it is adherence to a law which have managed to reach minimum standards of
justice which is referred to as adherence to the rule of law. 7 Given the above position and
more to be discussed below, a precise definition of what rule of law is remains a contentious
issue as many scholars tried to define but could not come to a consensus8.

1
According to Eric Barendt, “is a belief in the imposition of restraints on government by means of a
constitution.”
2
Section 3 of the 2013 Constitution “(1) Zimbabwe is founded on respect of the following founding values and
principle (b) the rule of law;”
3
Preamble “recognising the need to entrench democracy, good, transparent…and the rule of law” [my
emphasis]
4
Robert Stein Minnesota Journal of International law vol.18:2, “judicial power is exercised independently of
either the executive or legislative powers and individual judges base their decisions solely on facts and law of
individual cases”
5
Ibid. “laws are applied equally to all persons in like circumstances. Laws are sufficiently defined and the
government discretion sufficiently limited to ensure the law is applied non-arbitrarily”
6
Ibid. “the law is just and protects the human rights and dignity of all members of the society. Legal processes
are sufficiently robust and accessible to ensure enforcement of these protection by an independent legal
profession” This explains why the Land Acquisition Act had a procedure to be followed by the government in
acquiring land. This helped in protecting the rights of the citizens however the question is, was the procedures
duly followed? Was the procedure just in any way? Does it suffice to adhere to an unjust law?
7
A.S. Matthews South African Law Journal 312
8
John Rawls, Albert Venn Dicey, A.S. Matthews, L.L. Fuller, Robert Stein. They have tried to define the
concept of rule of law together with some other scholars not mentioned but they failed to agree however, what
appears to be the conclusion is that the concept of rule of law encompasses different aspects seeking one goal
and cannot be defined in simplistic forms.
A general overview which ought to have been agreed to by some scholars 9 before critics
emerged was posed by Albert Venn Dicey looking at the rule of law from a British
perspective10. His three conceptions which he asserts that they explain the rule of law were
reduced into two with passage of time11. The issue of equality before the law and availability
of a legal basis for every adverse action that is taken against an individual. A closer look at
the Diceyan theory shows that the writer was not concerned much with the content of the law.
He was concerned with the law as it stands, the law as it was made by the legislature, but is
adherence to an unjust law adherence to the principle of rule of law??? Dicey’s assumption
was that every law that is passed is just. My understanding however is that even if the law is
unjust, if it is applied equality to every person in that society where it was designed to
regulate conduct, it is adherence to the rule of law. It becomes a violation of the principle of
rule of law if that unjust law is not applied equally. The positivist theory is founded on the
basis that the law does not need to be just for it to be called a law or a rule to attain some
legal force12, it does not necessarily need to be just given the difficulty of defining what
justice is. It is very possible that wat is just for one man maybe unjust to another13. The
perception by the scholars who propounded the natural theory was taken into account in the
debate on the concept of rule of law. The naturalistic view is that law need to be just for it to
be called law14. This view was reiterated in a reasoning by A.S Matthews where he showed
great concern in the content of the law, he argued that for a law to qualify as a law, it must
meet minimum standards of justice15. Adherence to a law which falls short to the minimum
standards of justice is not adherence to the rule of law according to his argument.
In 1980, Zimbabwe became independent16. It was after this year when it embarked on the
land reform programmes. During this era, it appears that there was a violation of the rule of

9
John Rawls in A Theory of Justice 1999 agreed to the three concessions by Dicey
10
Albert Venn Dicey An Introduction of the Study of the Law of the Constitution 9 th ed. 1885 @194, “when we
say that the supremacy or the rule of law is a characteristic of the English Constitution, we generally include
under one expression at least three distinct though kindred conceptions…” He went on to highlight the 3
conceptions.
11
Ibid. “we mean in the first place, that no man is punishable or can be made to suffer in body or goods except
for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” The
other second was based on equality thus the writer went on to say, “thus, those who make and enforce law are
bound to adhere to it”
12
L. Madhuku Introduction to the Zimbabwean Law @2, “the positivist theory distinguishes law as it from law
as it ought to be. There is, therefore, such a thing as an unjust law, a bad law, an immoral law and so on” see
also page 4.
13
Ibid. page 5
14
Ibid. page 2, “according to the theory of natural law, law cannot be separated from the precepts of morality,
justice and fairness.” Therefore, law need to be fair, just and moral so that it can attain legal force. The question
now is, is adherence to this just, fair and moral law adherence to the principle of rule of law??
15
A. S. Matthews South African law journal@312
16
Greg Linington Constitutional Law @45
law. Given the above understanding of what rule of law is, it appears that there was a
violation of the principle in Zimbabwe during 1980s. For purposes of this discussion,
adherence to the rule of law must have passed the 2 senses which formed the basis of the
scope of debate in relation to the concept of rule of law. There should be adherence to what is
written in the law, if there is a procedure set in terms of an act of Parliament, it must be duly
followed and observed. And also, that law should have reached the minimum standards of
justice. The minimum standards of justice which are found in a democratic society are
explained by many things, inta alia observance of the doctrine of separation of powers,
independence of the judiciary, protection of fundamental rights. If any law is against any of
those elements and others which are not mentioned, or if it is contra bonos mores, it might be
said to have failed to reach the minimum standards of justice because violation of those
constitutional principle always results in injustice. In short, any law which is contrary to the
founding values and principles set in terms of section 3 of the constitution17 does not deserve
to be called law, any conduct, practice or custom which is also against such values must be
regarded as invalid. Accordingly, such law, practice, custom or conduct must not be adhered
to.
At this juncture, the writer will assess the adherence to the laws, practices, conducts or
customs since 1980 and determine whether such adherence was in line with the principle of
rule of. The first case to be discussed is the case of Commercial Farmers Union v Minister of
Lands 200018.
The old law incorporated the right to protection by the law. 19 The applicants in this case
challenged the occupation of their lands alleging that there was a violation of their right to
protection of the law by the government. The occupation of lands was claimed to have been
done in terms of the Land Acquisition Act, but in actual effect, the procedures in the act were
never duly followed. There was also a prior court order that had been ordered, the applicants
also wanted an interdict to stop the government from further acquiring or occupying land
unlawfully. This prior order was never complied with. The court held that the rule of law had
been broken down. The government failed to stick to the procedures specific in the act in
acquisition of land. This was against the narrow sense. It was also against the wider sense
hence there was violation of the principle of rule of law. In this case, the government violated
rule of law in the narrow sense since it failed to adhere to the procedures as stipulated in the

17
Section 3 of the 2013 Constitution of Zimbabwe.
18
2000 (2) ZLR 469 (S)
19
Section 18 of the Lancaster House Constitution
act. It violated the principle of rule of law as it was observed by A. V. Dicey who was
concerned with only adherence to the law as is. Before even asking the content of the law,
whether that law was just or unjust in the wider sense, the government failed to simply
comply with the law hence violating the rule of law.
The question on the rule of law was also raised in the case Commissioner of Police v
Commercial Farmers Union20. In this case, the High Court had recently issued an order
declaring the occupation of farms illegal, the applicants approached the court seeking to
amend the order. The applicants argued that there was lack of resources and that the courts
did not have jurisdiction over land issues which were in the purview and the domain of
politics. It was held by the court that everyone must comply with the law thus adherence to
the principle of the rule of law. The applicants were thus supposed to comply with court
orders. Failure to comply with the order of the court by the applicants meant that the rights to
protection of the law of the respondents were infringed. The mere fact that the applicants
failed to comply with the order of the court meant that they had failed to adhere to the
principle of the rule of law in the narrow sense. They had failed to comply with what the law
said. It is also within the confines of rule of law that people be protected by the law. Failure
to follow the court order result in the infringement, thus in the same vein, violation of the
principle of rule of law. In this case, the rule of law in the narrow sense was violated by the
conduct of the applicants.

The case which put to rest the land issue is the case of Mike Campbell (Pvt) Ltd & Ors v The
Minister of National Security Responsible for Land, Land Reform and Resettlement &
Anor21. The applicants were alleging that their rights were infringed by amendment 17 which
introduced section 16B, they allege that their right to protection of the law22, the right not to
have their private property compulsorily acquired without authority of law23 were infringed
and also that they were discriminated on the basis of race.24 It appears to be true that there
was some kind of violation of the law however the court ruled that acquisition of their land
25
was lawful in terms of section 16B. The court also held that no rights were infringed. In
this case, the rule of law principle appears to have been violated in the wider sense in that the
content of the law did not favour everyone in the society during that time therefore adherence
20
2000 (1) ZLR 503 (H)
21
SC 49/07
22
Section 18 of the Lancaster House Constitution
23
Section 16(1) 0f the Lancaster House Constitution
24
Section 23 of the Lancaster House Constitution
25
Section 16B of the Lancaster House Constitution
to that law is not adherence to the principle of rule of law. However, it can also be argued that
there was proper interpretation of law and due observance of the law which shows adherence
to the principle of rule of law in the narrow sense. The conclusion maybe that since the rule
of law in the narrow sense is more available and applicable in those states where there is no
democracy, it cannot be said there was rule of law in our democratic country Zimbabwe26.

In the case of Davies & Ors v Minister of Lands27, the principle of rule of law appeared to
have been observed. In this case, there was a challenge of the Land Acquisition Act which the
state relied on in acquisition of land was inconsistent to the constitution. It was held by the
court that the act was instead intra vires. The court took into account a common law principle
which was the source of the power of the state to acquire land therefore the applicants could
be lawfully evicted from their land. In this case, it can be argued that there was adherence to
the principle of rule of law in that since one of the pillars of the concept of rule of law is that
the content of the law is of no concern, what matters is whether there was adherence to the
law in the narrow sense. It must not be asked in the narrow sense whether the common law
principles from where the government drove power to acquire land was fair/just or not. That
becomes the purview of the wider sense. However, for a democratic society as Zimbabwe,
the rule of law in the narrow might mislead as there are greater chances of imposition of
arbitrary rule or exercise of arbitrary power on the justification that everything that is being
or has been done was according to the law. In other words, adhering to a law and paying no
regard to the consequences of strictly adhering to such law does not conform to adherence to
the principle of rule of law in a democratic nation.
As alluded earlier on, the principle of rule of law is founded on other constitutional principles
such as independence of the judiciary and the separation of powers. 28 That being said, the
writer is therefore delve into a discussion of the observance of independence of judicial in
Zimbabwe since 1980 since observance of the independence of the judiciary mean adherence
to the principle of rule of law as argued by Robert Stein. The old constitution incorporated 29 a

26
Section 1 of the 2013 Constitution, “Zimbabwe is a unitary, democratic, and sovereign republic” [my
emphasis]
27
1996 (1) ZLR 681(S)
28
Robert Stein Minnesota Journal of International Law vol. 18:2 @302 “I offer to the following definition as
ideal characteristics of a society governed by the rule of law; judicial power is exercised independently of either
the executive or the legislature…” [ my emphasis]
29
Section 79B of the Lancaster House Constitution, “in the exercise of his judicial authority, a member of the
judiciary shall not be subject to the direction or control of any person or authority…” Although there are some
exceptions, this section shows that the judiciary was supposed to have some independence.
provision as well as the new constitution30 on the independence of the judiciary. The question
to be asked is whether the principle was observed practically. If the judiciary is independent,
it is free to interpret the law in whatever way necessary, if it is necessary in the circumstances
to set aside any law, custom, or practice, the judiciary is free to do that if independence of the
judiciary is observed. In the famous case of S v Banana31 where Banana was charged of
counts of sodomy. He sought to deny liability on the basis that the offence was
discriminatory. It criminalised consensual sodomy between man and man thereby excluding
women. He argued that it was therefore inconsistency with the constitution.32 An ordinary
construction or a strain literalistic approach in such circumstances shows that truly the law
was discriminatory therefore it was invalid by virtue of section 3.33 It the time for the
judiciary to exercise its independence. The court held that even though there was
discrimination, it was reasonably justifiable in a democratic society and a conservative
society in sexual matters as Zimbabwe therefore the accused was found guilty. It can be
argued that such exercise of discretion was at the same time in line with the doctrine of
separation of powers. The judiciary managed to exercise its judiciary authority without any
influence, such kind of judicial review is in tandem with separation of powers therefore in
this case, there was observance of rule of law.

The principle was however violated in some cases were the principle of judicial
independence together with doctrine of separation of powers were being violated. The case of
Rattigan v Chief Immigration Officer34 is one example where the decision of the judiciary
was overturned by the legislature35. It appears to be a violation of the principle of
independence of the judiciary as the judiciary would not be free to decide over cases knowing
that the decisions maybe set aside by the legislature. Such violation means that there is no
adherence to the principle of rule of law. Another case is the case of Catholic Commission of
Justice and Peace v Attorney General and another.36 In this case, the judiciary had exercised
its independence and held that the practice of delay in execution of death penalty by the
executive constitute inhumane and degrading treating. The legislature reversed this

30
Section 164 of the 2013 Constitution’ “the courts are independent and subject only to this constitution…”
31
2000 (1) ZLR 607 (S)
32
Section 23 of the Lancaster House Constitution
33
Section 3 of the Lancaster House Constitution
34
1994 (2) ZLR 54
35
Constitution of Zimbabwe Amendment (no.14) 1996
36
1993 (1) ZLR 242
judgement37 thus violating the principle of separation of power through exercising too much
power over the judiciary which exceeds the limits of the checks and balance.
Violation was also seen in the case of Jestina Mukoko v Attorney General 38 where the
applicant was tortured so as to tender evidence. This was against the freedom from torture39
therefore breach of rule of law in the narrow sense. The executive failed to comply with the
law. Mukoko was also detained illegally thereby violating her right. 40 This shows a non-
adherence to the rule of law right in the narrow sense which begs for compliance.
In the case of Chavhunduka and Choto v Minister of Home Affairs 41 where the 2 applicants
were arrested by members of the army after publishing an article alleging an attempt of
governance take over by way of a coup by members of the army. The Supreme court ordered
the release of the two but it was never complied with, instead, Mugabe (president as he then
was) appeared on national broadcasting services uttering the following words, “they are
arrogating to themselves powers that they do not have, they are forgetting who appointed
them” The mere fact that the army does not have the power to arrest shows breach of the law
therefore breach of the rule of law in the narrower sense and also exercise of power by
Mugabe exceeded the limits expected in observance of both independence of the judiciary
and the separation of powers therefore breach of rule of law.
In conclusion, the position observed by scholar Robert Stein in his journal article seems to be
more appealing. He concluded as follows, “the rule of law in its purist is an ideal, a goal,
something to be strived for. As an ideal, it is never fully achieved. Its presence or absence
should be judged in relative terms; what is possible in an advanced western democracy may
not be possible in a developing nation. No country may rightfully claim perfect adherence to
these ideals” Some of the ideals were discussed in the essay42. The conclusion appears to be
true, truly, no country may rightfully claim perfect adherence to the ideals which underlay a
society where rule of law is observed. But however, though it is difficulty to perfectly adhere
to all the principles and ideas, the situation in Zimbabwe since 1980 appears to have
exceeded the bounds, there was great violation of the concept of rule of to an extent that it is
difficult to justify it even from Stein’s perspective. The basic ideals underlying the rule of law
in a democracy43 were violated greatly in Zimbabwe.

37
Constitution of Zimbabwe Amendment (no.13) Act 1993
38
SC 11/12
39
Section 15 of the Lancaster House Constitution
40
Section 13 of the Lancaster House Constitution
41
2000 (1) ZLR 533
42
See paragraph 1
43
Ideals outlined by Robert Stein in his journal article Minnesota Journal of Int law vol. 18:2 @302
BIBLIOGRAPHY
Chavhunduka and Choto v Minister of Home Affairs2000 (1) ZLR 533

Catholic Commission of Justice and Peace v Attorney General & Anor 1993 (1) ZLR 242

Commercial Farmers Union v Minister of Lands 2000 (2) ZLR 469 (S)

Commissioner of Police v Commercial Farmers Union 2000 (1) ZLR 503 (H)

Davies & Ors v Minister of Lands 1996 (1) ZLR 681(S)

Dicey, A. V. An Introduction of the Study of the Law of the Constitution 9th ed

Jestina Mukoko v Attorney General SC 11/12

Linington, G. Constitutional Law

Mike Campbell (Pvt) Ltd & Ors v The Minister of National Security Responsible for Land,
Land Reform and Resettlement & Anor SC 49/07

Matthews, A. S. South African Law Journal 312

Madhuku, L. (2010) An Introduction to Zimbabwean Law Weaver Press; Harare

Rattigan v Chief Immigration Officer 1994 (2) ZLR 54

Rawls, J. A Theory of Justice 1999

Stein, R. Minnesota Journal of International law vol.18:2

S v Banana 2000 (1) ZLR 607 (S)

The Constitution of Zimbabwe Amendment (no. 20) Act 2013

The Lancaster House Constitution 1980

The Land Acquisition Act [ chap. 20:10]