NAME........

COLIAS

SURNAME........ DUBE

REG NUMBER......R1710242A

MODULE........ CONSTITUTIONAL LAW

MODULE CODE......137

LECTURER.....V MUTATU

Assignment question: Discuss the importance of section 85 of the Constitution in the protection
of human rights in Zimbabwe

There has been a significant paradigm shift, especially in light of the broad provisions of section
85 of the Zimbabwean Constitution towards the liberalisation of locus standi in
Zimbabwe1.Locus standi relates to whether a particular applicant is entitled to seek redress
from the courts in respect of a particular issue2.Standing or locus standi determines whether an
individual or a group of individuals or an entity has the right to claim redress on a justiciable
matter before a tribunal authorized to grant the redress sought 3.Locus standi is regarded as an
essential tool for the litigation of human rights.The Lancaster House Constitution codified a
restrictive approach to standing and prevented civil society organizations,pressure groups and
political parties from seeking justice on behalf of marginalised groups.This paper seeks to
determine the importance of section 85 of the Zimbabwean Constitution Amendment (No.20)
2013,through it's provision of the framework of who can sue and the procedural framework for
suing(locus standi).In discussing the importance of this section,this write up will look at the
provision of locus standi under the Lancaster House Constitution.It will also look at standing in
South Africa.

1.A Moyo 'Standing access to justice and the rule of law in Zimbabwe(2018) 18 African Human
Rights Law Journal 266-292

2.Strenghtning Locus standi in Human Rights Litigation in Zimbabwe:An Analysis of the

provisions of the new Zimbabwean Constitution

3.(n2 above)
Zimbabweans been both victims of and witnesses to serious human rights violations over the
years4.Although the Lancaster House Constitution contained a declaration of rights,its
enforcement mechanisms particularly those relating to locus standi(legal standing),posed a
great challenge to human rights litigation in Zimbabwe 5.This was so because the Lancaster
House Constitution adopted the traditional common law approach to locus standi.Under the
traditional common law approach to standing it was required that an individual should have a
'personal,direct or substantial interest in a matter in order to have standing 6.As such the
Lancaster House Constitution failed to recognize the importance of broader rules of
standing,which would accommodate public interest litigation, specifically for human
rights.However the Constitution of Zimbabwe(2013) broadens the rules of standing in a bid to
enhance access to courts.

The question of locus standi(the traditional narrow rules of standing) under the Lancaster
House Constitution provided a challenge to human rights litigation in Zimbabwe.According to
Linington the problem of locus standi was further compounded by the language used under
section 24 of the Lancaster House Constitution and by the judiciary's understanding or lack of
understanding of the provision7.The Lancaster House Constitution provided two ways in which a
case could be brought before the courts.In terms of section 24(1) of the Lancaster House
Constitution a person could approach the Supreme Court directly if he/she alleged that the
Declaration of Rights has been,was being or was likely to be contravened in relation to
him/her.Section 24(1) of the Lancaster House Constitution stated that"if any person alleges that
the Declaration of Rights has been , is being or is likely to be contravened in relation to him(or in
the case of a person who is detained ,if any other person alleges such a contravention in relation
to the detained person),then without,prejudice to any action with respect to the same matter
which is lawfully available,that person(or that other person) may subject to the provisions of
subsection(3) apply to the Supreme Court for redress".

4.Human rights watch 2011 Perpetual Fear: Impunity and Cycles of violence in Zimbabwe
https://www.hrw.org/report/2011/03/08/perpetual-fear/impunity-and-cycles-violence...
(Accessed 21/07/21)

5.Chiduza L and Makiwane PN , Strengthening Locus standi in Human Rights Litigation in

Zimbabwe:An Analysis of the provisions in the new Zimbabwean Constitution

6.See sec 24(1) of the Lancaster House Constitution

7.Linington "Developing a New Bill of Rights"49

As such section 24(1) sought to provide direct access to the Supreme Court to any person who
alleged personal violation of Rights.The aim of section 24(1) in regards to human rights
litigation was to provide quicker access to the Supreme Court,which was the final court under
the Lancaster House Constitution8.However the problem with section 24(1) of the Lancaster
House Constitution was that it was not enough that one had an interest in the matter when
seeking to approach the Supreme Court directly,since the applicant's own rights should have
been affected9.This approach was reiterated in the case of United parties v Minister of
Justice ,Legal and Parliamentary Affairs10.In this case the applicant,a political party wanted to
challenge the constitutionality of the provisions of the Electoral Act [Chapter 21:01].The
provisions gave constituency registrars the right to object to the registration of voters ,as well
as the right to desist from having to take any action in respect of objections lodged by voters
regarding the retention of their names on the voter's roll.The Supreme Court held that the
political party had no locus standi in judicio to challenge the provisions of the Electoral Act ,
which it alleged contravened the right to freedom of expression of voters,such as the right
protected under section 20 of the Lancaster House Constitution 11.

8.See Mhandirwe v Minister of state 1986 ZLR 1(S) where Baron JA stated that"section 24(1)
provides access to the final court of the land.The issue will always be whether there has been an
infringement of an individual's rights or freedoms;and frequently will involve the liberty of the
individual.Constitutional issues of this kind usually find their way to this court but a favourable
judgement obtained at the conclusion of the normal and sometimes very lengthy,judicial
process could well be of little value.And even where speed is not of essence there are obvious
advantages to the litigants and to the public to have an important constitutional issue decided
by the Supreme Court without protracted litigation"

9.Linington"Developing a New Bill of Rights"52

10.United Parties v Minister of Justice,Legal and Parliamentary Affairs 1998 2 BCLR 224(ZS)

11.See section 20 of the Lancaster House Constitution,which protected the right of freedom of
expression

Gubbay CJ stated that"Thus section 24(1) affords the applicant locus standi in judicio to seek
redress for a contravention of the Declaration of Rights only on relation to itself(the
expectation being where a person is detained).It has no right either on behalf of the general
public or anyone else.The applicant must be able to show a likelihood of itself being affected by
the law impugned before it can invoke a constitutional right to invalidate the law" 12.As such we
can see that although the Lancaster House Constitution provided for an automatic right of
direct access to the Supreme Court,it had it's own short comings since an applicant first needed
to required locus standi test.

Section 24(2) of the Lancaster House Constitution provided for a second way of bringing cases
involving the Declaration of Rights.Section 24(2) stated that "if in any proceedings in the High
Court any question arises as to the contravention of the Declaration of Rights,the person
presiding in that court may ,and if so requested by any party to the proceedings,shall refer the
question to the Supreme Court unless in his opinion the raising of the question is merely
frivolous or vexatious".In terms of this section any court and if so requested by any party to the
proceedings,had power to matters involving any alleged breach of the Declaration of Rights to
the Supreme Court.Failure by the lower court to refer such a matter to the Supreme Court was
considered as a breach of the Declaration of Rights 13.

12.United Parties v Minister of Justice,Legal and Parliamentary Affairs 1997 2 ZLR 245(2).See
also Retrofit(PVT) LTD v Posts and Telecommunications Corporation 1995 2 ZLR 199(S) 207 H-
208A

13.Ma v Attorney-General 1993 1 ZLR 153(SC).When delivering his judgement,Gubbay CJ stated

that "suppose that a judicial officer,solely due to the animosity towards an accused,in bad faith
and without any warrant,were to rule that the question raised by him was frivolous or
vexatious and so order his remand in custody pending trial.Could it be then said that the
accused was only entitled to approach the Supreme Court for relief under section 24(3)?.I think
not.Such action by the Judicial officer concerned would as mentioned before,itself constitute an
infringement of the accused's entitlement to the protection of law . Moreover and most
importantly,since at conclusion of any remand proceedings there is no right of appeal,no
remedy under section 24(3) would be available to that accused".

From the above discussion we can therefore see that the narrow rules of locus standi under
the Lancaster House Constitution posed a serious problem in terms of access to justice since
the rules failed to recognise the practical barriers that prevented marginalised and valunerable
groups from accessing the Courts.The narrow interpretation of the rules of standing(locus
standi) adopted by the judiciary became an impediment to human rights litigation in
Zimbabwe.It limited litigants' right to access courts for the protection of their fundamental
rights and freedoms.However with greater influence from the South African legal system
particularly section 38 of the South African Constitution,Zimbabwe adopted a liberal approach
to locus standi through section 85 of the 2013 Constitution 14.

Before moving to look at locus standi under the South African Constitution ,it is imperative to
note that regardless of the restricted nature of standing under the Lancaster House
Constitution,the Supreme Court developed some flexibility in human rights litigation and
expanded it's capacity to hear cases that were brought before it in the public interest 15.Also in
the case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General
&Others16,a human rights organization brought an application to prevent the execution of
certain prisoners on death row on the basis that the sentences had been rendered
unconstitutional by virtue of the lengthy delay in carrying out out the sentences.One of the
questions that had to be determined by the court was whether or not the organization had
locus standi to act on behalf of the prisoners.The court observed that the organisation's
avowed objects were to uphold human rights , including...the right to life' and it was intimately
concerned with the protection and preservation of the rights and freedoms granted to persons
in Zimbabwe by the Constitution17.

14.Constitution of Zimbabwe Amendment(No.20) 2013

15.See Zimbabwe Teachers Association v Minister of Education 1990(2) ZLR 48(HC) 52-53

16.1993(1) ZLR 242(S)

17.Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General and others
1993(1) ZLR 242(S)

Gubbay CJ on behalf of the majority held that"it would be wrong...for this court to fetter itself
by pedantically circumscribing the class of persons who may approach it for relief to the
condemned prisoners themselves,especially as they are not only indigent but ,by reason of
their confinement,would have experienced practical difficulty in timeously obtaining interim
relief from this court18.

The South African Constitution adopted a liberal approach as it provides various forms of public
interest standing for the protection of rights in the Bill of Rights 19.Liebenberg notes that section
38 of the Constitution makes a broad and generous provisions for persons who allege that a
right in the Bill of Rights has been infringed or threatened to approach a court for appropriate
relief20.

The 2013 Constitution of Zimbabwe revised the position of locus standi using the South African
provision as a model.

18.(n 17 above ), see also G.Feltoe 'The standing of human rights organisations and individuals
to bring or be parties to legal cases involving issues of human rights'(1995) 7 legal Forum 12

19.Sec section 38 of the Constitution of the Republic of South Africa 1996 that states"Anyone
listed in this section has the right to approach a competent Court, alleging that a right in the Bill
of Rights has been infringed or threatened,and the court may grant appropriate relief,including
a declaration of rights.The persons who may approach a court are

(a) anyone acting in their own interest

(b) anyone acting on behalf of another person who can not act in own name

(c) anyone acting as a member of ,or in the interest of a group or class of persons

(d) anyone acting in the public interest,and

(e) an association acting in the interest of it's members"

20.Lienbenberg "Reflections on the Drafting a Bill of Rights"40

The Constitution of Zimbabwe Amendment No.20(2013) through section 85 identifies a number

of litigants that may have locus standi when alleging that a right in the Declaration of Rights has
been violated [Section 85 of the 2013 Constitution still includes the traditional approach to
standing(those acting on their own interest), representative standing(anyone acting on behalf
of another person who cannot act for themselves),class actions(anyone acting as a member
of,or in the interest of , a group or class of persons);public interest standing(anyone acting in
the public interest)and organisational standing(an association acting in the interests of its
members)].
Section 85(1) of the Constitution21provides for the enforcement of rights where the the right
has been violated,where the violation is underway,and where the violent is imminent or
likely,and as such people do not have to wait for their rights to be violated before they can seek
redress before the courts.Section 85(1) of the Zimbabwean Constitution Amendment 20(2013)
gives the court the discretion to determine the appropriate relief to the parties who have had
their rights violated.When the courts find out that the rights of an applicant have been violated
or threatened,it can make an order for compensation or a declaration of rights.

Through allowing class actions/public interest section 85 enhances human rights litigation.The
process of human rights litigation brought by organisations or individuals on behalf parties who
are unable to access the courts has proven successful at protecting the rights of marginalised
groups in South Africa22.

21.Constitution of Zimbabwe Amendment Act(No.20) 2013

22.

Section 85(3) of the Constitution of Zimbabwe mandates that the rules of every court should
provide for the procedure to be followed in case where relief is sought under section 85(1) .
Section 85(3) states that "the rules of every court must provide for the procedure to be
followed in cases where relief is sought under subsection(1),and those rules must ensure that-
(a) the right to approach the court under subsection(1) is fully facilitated;(b) formalities relating
to the proceedings,including their commencement are kept to a minimum;(c) the court,while
observing the rules of natural justice,is not unreasonably restricted by procedural
technicalities;and (d) a person with particular expertise may,with the leave of the court ,
appear as a friend of the court".By demanding that rules should be put in place to facilitate
constitutional litigation under section 85(1)(a)-(e) the Constitution seeks to improve access to
justice and it also removes any delays in the hearing of cases.This in turn ensures the protection
of human rights and ensures that cases are speedily resolved.

In a bid to further guarantee that the courts are easily accessible for litigation,the 2013
Constitution stipulates that the absence of the rules in section 85(3) shall not limit the right to
commence any proceedings under section 85(1) and to have the case heard and determined by
the courts23.Furthermore section 85(3)(d) of the Constitution of Zimbabwe allows for an amicus
currie ,a person with a strong interest in or views on the subject matter of an action,but not a
party to the proceedings,to petition the courts and advise the courts on the same matter of the
law that directly affects the case in question.Through encompassing the impact of the amicus
currie the Constitution,recognizes the importance of the amicus currie in human rights litigation
in the general context of public interest litigation.The participation of the amicus currie is an
established and essential practice in legal history of South Africa.In the case of South Africa,the
legislative provision for the amicus currie is found under the constitutional Court rule 10 of the
Constitutional Court Rules.According to Brickhill and Du Plessis South African courts are
increasingly recognizing that certain matters must necessarily involve the perspectives and
voices of organizations or entities that may not have a direct legal intrest in the matters 24.

23.Section 85(4) of the Constitution of Zimbabwe Amendment Act(No.20) 2013

24.Brickhill J and Du Plessis M "Two Company,Three's a crowd in investor-state

Arbitration(Piero v South Africa" 2011 South Africa Journal on Human Rights

In addition to expanding the rules of locus standi the Constitution of Zimbabwe Amendment
Act(No.20) explicitly removes the concept of the "dirty hands doctrine" 25,a s a barrier to
constitutional litigation.The Constitution states that"...the fact that a person has contravened a
law does not debar them from approaching a court for relief under subsection(1) 26.This section
ensures that a person(s) who may be guilty of contempt is not precluded from instituting
constitutional applications.Moreso section 85(2) also seeks to guide the judiciary when dealing
with constitutional matters.

During the Chidyausiku era,the judiciary used the dirty hands doctrine to deny persons locus
standi before the courts ,and in the process hindering the protection of human rights.In
contradiction of the decision reached in the case of Minister of Home affairs v Brickle 27,the
Supreme Court ruled in the case of Associated Newspapers of Zimbabwe(Pvt)Ltd v Minister of
State for Information and Publicity in the President's office28

25.the dirty hands doctrine manifests the principle that one cannot seek equitable relief or
assert an equitable defence if that person has violated an equitable principle

26.Section 85(2) of the Constitution of Zimbabwe Amendment Act(No.20)2013

27.Minister of Home affairs v Brickle 1998 (1) ZLR 99(S).In this case the Supreme Court held that
the effect of section 24(Lancaster House Constitution) as read with section 18(1) and (9) of the
Lancaster House Constitution,was that the courts cannot,except in the most exceptional
circumstances,deny aggrieved persons access to them.Fieldsen CJ stated that the constitutional
right of access should prevail unless it is plain that the contempt either of any process or of the
law which the applicant may be guilty itself impedes the course of Justice.In making the decision
the court relied on the English case of Hadkinson v Hadkinson 1952 ALL ER 567(CA) 574 where
Denning LJ stated "it is a strong thing for a court to refuse to hear a party to a cause and it is
only to be justified by grave considerations of public policy.It is a step which a court will only
take when the contempt itself impedes the course of justice and there is no effective means of
securing his compliance

28.Associated Newspapers of Zimbabwe(Pvt) Ltd v Minister of State for Information and

Publicity in the President's office 2003 Zw SC 20

that a corporate entity could not challenge the constitutionality of the provisions of the access
to information and privacy act30.The applicant(the owner of the Daily news) had failed to
register in terms of the Act and as a result of this failure , Chidyausiku ruled that the applicant
had failed to comply with the impugned legislation and because of the non-compliance it was
held that the applicant had dirty hands which in turn prevented it from proceeding with the
constitutional application.

Feltoe notes that although the applicant raised the Brickle case in its heads of argument,the
Supreme Court never referred to this case in it's argument31.In the words of Linington instead of
relying on the Brickle case,the Supreme Court relied on the English case F Hoffman n-La Roche
and Co AG v Secretary of state for trade and industry 1975 AC 295,that had not been raised by
either side in the proceedings and was not relevant in the discussion of the dirty hands
doctrine32.Feltoe also notes that the Hoffman case did not involve a constitutional challenge
and the dirty hands doctrine.This is so because the Hoffman case did not rule that a person who
is arguing that a law requiring compulsory registration was a violation of his fundamental
rights,must first comply with that law before he is entitled to a ruling regarding the
constitutionality of that law33.Linington further notes that the essence of the Brickle case is that
compliance with an impugned law is not a prerequisite to challenge a law concerned 34.Bloom -
Cooper ,in criticising the decision of the Supreme Court,pointed out that the dirty hands
doctrine was not relevant in the context of public law as it applied exclusively in private law 35.

30.Access to Information and Privacy Act[Chapter 10:27]

31.Feltoe Whose hands were Dirty?An Analysis of the Supreme Court Judgement in the ANZ case

32.

33.(n31 above ) see also Linington"Developing a New Bill of Rights"55

34.Linington"Developing a New Bill of Rights"56

35.Bloom -Cooper L 2003 Mugabe's Judges are Paper Tigers

http//www.thetimes.co.uk>article(Accessed 21/07/21)

In conclusion with the introduction of the 2013 Constitution Zimbabwe joined other
jurisdictions around the world who have mechanism that protect the right for a person to
challenge the constitutional validity of legislation.Through section 85 of the Constitution
Zimbabwe has developed an effective culture of constitutionalism and access to courts is
guaranteed.
BIBLIOGRAPHY

Books

Lienbenberg S"Reflections on the Drafting of a Bill of Rights:A South African Perspective" in

Kersting N(Ed) Constitution in Transition: Academic inputs for a new Constitution in Zimbabwe

Linington G"Developing a New Bill of Rights for Zimbabwe: Some issues to consider"in
Kersting N(Ed) Constitution in Transition: Academic inputs for a new constitution in Zimbabwe

Journals

Brickhill J and Du Plessis M "Two's Company,Three's a Crowd in investor - state

Arbitration(Piero v South Africa)"2011 South African Journal on Human Rights

A Moyo 'Standing access to justice and the rule of law in Zimbabwe(2018) 18 African Human
Rights Law Journal
Website(s)

Bloom-Cooper L 2003,Mugabe's Judges are Paper

Tigers.http://www.thetimes.co.uk>article(Accessed 21/07/21)

Human rights watch 2011 Perpetual Fear: Impunity and Cycles of violence in
Zimbabwe.https://www.hrw.org/report/2011/03/08/perpetual-fear-impunity-and-cycles-
violence...(Accessed 21/07/21)

Articles

Feltoe G,"Whose hands were Dirty?An Analysis of the Supreme Court Judgement in the ANZ case