ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW

BACHELLOR OF LAWS (HONOURS) DEGREE

SHALOM CHIGOGORA R220364L

PRECIOUS NYAMIMA R220397L

KUZIVAKWASHE MAKUKU R220389L

NAOMI MAGANGA R220366L

TANATSWA MUZVONDIWA R220461L

BENJAMIN T SHAKA R220362L

TASHINGA SOFALINO R220410L

ALICE MAGURA R220360L

NATALIA BANGOJENA R220434L

COURSE: CONSTITUTIONAL LAW COURSE CODE: LLB121

QUESTION: With reference to the case of Kawenda v Minister of Justice, Legal and
Parliamentary Affairs & Others CCZ 3/22, elucidate how the principle of constitutional
supremacy prevailed over parliamentary supremacy. (30)

1
Introduction
In light of the facts provided, it is vivid that the principle of constitutional supremacy prevails
over parliamentary supremacy in that by its virtue the former reigns as the supreme law of
Zimbabwe, thus any law created by the latter is null ab initio where ultra vires the dictates of the
constitution. Thus, the main gist of this essay is to provide an in-depth of the aforesaid principles
and how Constitutional supremacy prevails or parliamentary supremacy with reference to the
case of Kawenda v Minisyer of justice, Leal and Parliamentary affairs.

Historical background & Problem statement

In order to eschew illogical conclusion, it is paramount that one ascertains the relationship
between the abovementioned principles. It is lucid that Zimbabwean Constitution is built on
Constitutional supremacy which emanates from the Preamble as perilous theme of decisive
authority derived from the people, thus why the constitution is regarded as supreme “we the
people of Zimbabwe, United in our diversity…” 1Therefore, the constitution expresses the values
of the people to a constitution they voted for under a referendum and these values of common
interest being enforced by the Courts. It prudent to support the conception by John Locke that the
constitution rose out of social contract between the state and its people in a bid to protect man
and punish transgressors of the law. The aspect of Constitutional Supremacy is established in
section 2 of the constitutions of Zimbabwe which reiterates “This constitution is the supreme law
of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent
of the inconsistency”2.

Hence it is clear that the courts are vested with judicial review to promote toeing the line with the
constitution by declaring any law not in tandem to be null and void. It is worth noting that due to
adoption of Constitutional supremacy in Zimbabwe, the Courts are vested with the power to
declare validity of any legislation as illustrated in Ian Smith v Didymas Mutasa3 where it was
held that the decision by Parliament to deny Mr Smith his salary for an alleged contempt of
parliament was unconstitutional as it contravened section 16 of the Lancaster House

1
Constitution of Zimbabwe Amendment No 20 Act 2013 2013, preamble “we the people of Zimbabwe,
united in our diversity by our common desire for freedom, justice and equality…”
2
Section 2 of the Constitution of Zimbabwe
3
Ian Douglas Smith v Didymas Mutasa 1989 (3) ZLR 183
2
Constitution4 as the judgment passed showed that Parliament is a creature of the constitution.in
light of the above one can allude that Zimbabwe’s constitution is largely influenced by the united
states constitution through principle of constitutional supremacy which is opposed to
parliamentary sovereignty in Britain, to which laws passed by parliament cannot be subject to
review in any court of law as espoused in the case of Madzimabuto v Larden Burke 5 where the
British parliament took strides to enforce its parliamentary supremacy by declaring Smith UDI as
illegitimate as neither a de facto or de jure government. Therefore with reference to the Kawende
case, it exposes the supremacy of the constitution against parliamentary sovereignty where there
is need to protect fundamental human rights.

Furthermore, Chapter 8 of the Zimbabwean constitution where judicial authority is derived from
the people and vested in the courts. It also provides for judicial independence as enshrined in
section 164 as they should be transparent and pass verdicts without fear and favor. Therefore, it
is clear that the judiciary plays an active role in providing checks and balances to arms of
government to which the court enforce values of the Constitution by upholding an equilibrium in
the distribution of powers. In essence, it is rational to infer that the constitution by the virtue of
its dictates, it reigns superior, as it promotes values of constitutionalism enshrined in section 3.

Argument

The judgment of the court a quo is set aside and substituted with the following:

● The definition of '·young person" in s 61 of the Criminal Law Codification and Reform
Act [Chapter 9.23] is unconstitutional and is hereby set aside.

● Sections 70, 76, 83 and 86 of the Criminal Law (Codification and Reform) Act [Chapter
9.23] are declared unconstitutional and are hereby set aside.
● The orders of constitutional invalidity made in section 70 (a) and 3 above are hereby
suspended for 12 months from the date of this order to enable the respondents to enact a
law that protects all children from sexual exploitation in accordance with the provisions
of s 81(I)(e ) of the Constitution of Zimbabwe:·

4
Section 16 Lancaster House Constitution
5
Madzimabuto v Ledner Burke 1968 (2) SA (284)

3
In light of the verdict It is imperative to aver that the constitution provides a plethora of
transformative trajectories inclined to the protection of public interest rights as argued in
Chapter 4 and most precisely the Locus standi in judicio under section 85, which proved
undisputed with regards to the conflict arising between Constitutional supremacy and
Parliamentary sovereignty as argued it the Kawende v Minister of Justice, Legal and
parliamentary affairs, was subjected to application of Statutory rules of
interpretation .Constitutional supremacy prevailed over Parliamentary supremacy in the aforesaid
case by the fact of the deposition which upholds the applicants lack of consistency between the
Criminal Codification and the Constitution, where the CODE definition of a young person under
Section 61 holds a young person to be a boy or girl below the age of 16, whereas under Section
81 of the Constitution a young person is deemed below the age of 18.

Also this was concurringly held by Patel JCC agreeing to the applicants submission to which the
CODE in Section 70 is unconstitutional because of the age of consent to sexual Intercourse set at
16, proved contrary to provision sanctioned in Section 81, as the it subjects the girl child to early
indulgence in sexual activities, which further deprives them of equal economic and educational
opportunities with boys and further the risk of contracting sexually transmitted Infections.
Therefore, the verdict reached is transformative and hails the supremacy of the constitution as
embedded in section 2., as it strides to protect the girl child from harmful practices and
promiscuous men, such that they can be afforded equal opportunities with boys.

It is clear that Section 46 stipulates constitutional supremacy in relation to the interpretation of

Chapter 4. Judges therefore obey the decrees of the Constitution. Other international treaties and
agreements are most important as external tools for interpreting the Constitution. This spectrum
is illuminated in the amplification and prescription of Humanitarian laws which sanctions a legal
and moral obligation of adherence by member states. To prove the above mentioned, Principle 7
of the Bangalore Principles6 sanctions an obligation by courts to pay regard to international
treaties whether domesticated or not, for purposes of removing ambiguity and uncertainty. This
is illustrated in the case of the Minister of Home Affairs, Berm V Fisher 7 which was quoted in
Bull v Minister of Home Affairs8 quoted Lord Wilberforce on his perception of the constitution as

6
Bangalore Principles
7
Minister of Home Affairs Berm V Fisher
8
Bull v Minister of Home Affairs (1) ZLR 202.210

4
a broad construction ‘A constitution is a legal instrument giving rise to individual rights and
respect must be paid to language and traditions given meaning to that language and if consistent
,,,recognition of rules of interpretation apply…as a guideline to principles that give effect to
those rights…from the statement which the constitution commences’.Therefore, in deposition
Constitutional supremacy prevails, when one takes into account the binding nature of
international instruments austerity tabulated in legalism”. In this context there is creation of
judicial activism as courts used these principles to support incorporation through interpretation of
international treaties to give effect to domestic fundamental rights jurisprudence strengthens the
principle.

Therefore, in light of the above, it is apt to deduce that international treaties are significant as
external aids to interpretation as they create a framework of rules with a binding obligation of
adherence and further instigates the courts to invoke international treaties even if they have not
been incorporated. Further the court quo reasoning is a judicious spear of judicial activism,
means of checks and balances against acts of parliament which are not in alignment with the
Constitution, thus Constitutional supremacy succeeds over Parliamentary supremacy See Section
134 as applied in the case of Mlilo v Minister of Finance, where the Court held null and void
subsidiary legislation which demised Parliamentary supremacy. This is further collaborated in
the Mudzuru v Minister of Justice, Legal and Parliamentary affairs, as precedenced in the case in
assessment. Thus, the decision held outlines the dire need to protect children from sexual
exploitation, when section 22 of the Marriages Act was declared ultra vires section 81 of the
constitution.

More so, the case of Kawenda v Minister of justice legal and parliamentary elucidate the
principle of constitutional supremacy over parliamentary supremacy on the issue of child right to
health care. The Criminal Code Act [chapter 9:23] compromises the health of girls by allowing
the age of consent to be 16 years old. This is unconstitutional because Section 81 of the
constitution regard a child as someone who is under the age of 18. Section 81 (1) (f) of the
constitution also states that every child has the right to education, health care, nutrition and
shelter. The criminal code deprived children of the age of 16 and 17 their right to health care
since it regards them as adults who can be married. This leads to child sexual exploitation. The
court’s decision shows the supremacy of the constitution since it decided that all children under

5
the age of 18 are not allowed to be married thereby protecting them from sexual exploitation. In
the case Mudzuri and Another v Minister of Justice and Parliamentary Affairs the court also
discover the harmful effects of marriage on children especially on girls. The court incorporated
into the application these findings and scientific evidence referred to in that judgment. The fact
that the court’s decision was based on protecting the health care of all children shows
constitutional supremacy. In the case S v Mabvudzi a 28-year-old polygamist forcefully
married a 13-year-old girl and raped her. Upon medical examination both the complaint and the
applicant were found HlV positive. Hence, the issue of child protection from sexual exploitation
must be given to all children as the constitution stated since all children are at the risk of sexual
exploitation even those of 16 and 17 years.

In the case of Kawenda and minister of justice ...& others the concept of constitutional
supremacy overweighed the principle of parliamentary supremacy. This view can be awarded
authenticity because the applicants clearly pointed out how the legislative provision that justified
the age of consent that is the Criminal Law (codification and reform) Act as 16 contravenes the
constitutional provisions of the rights of children. 9 Section 81 (1) (f) highlights that every child
has the right to education in turn reflecting that giving sexual consent to children is a breach of
the stated constitutional provision.10 This is because if children are given consent to engage in
sexual activities, it would then result in early marriages and the notion of education being
abandoned. With such points being raised by the applicants and considering the fact that it was
this case that led to changing of the age of consent to 18 years, constitutional sovereignty
prevailed over parliamentary sovereignty. One of the pioneering reasons for the end result of this
case was the fact that “the constitution as made by the people is the supreme law of the land and
it is superior to all other laws and legislations”.11

In addition, it is clear that constitutional supremacy reigns as some parliamentary statutes expose
young children to harmful practices and such as early child marriages, contracting HIV, thus the
applicants sufficiently proved that the CODEs definition was ultra vires the constitution because

9
The Criminal law (Codification and Reform) Act (Chapter 9:23) section 61
10
The Constitution of Zimbabwe Amendment No.20 (2013) section 81(1) (f)
11
https://www.studocu.com/row/document/adekunle-ajasin-university/constitutional-law/constitutional-
supremacy/2963006

6
it adversely violated the right to health of young person’s due to its age restriction of 16 years
and allowing them to engage in sexual activity at that stage recommendations entail firstly. the
amendments of the definition of “young person" in s61 of the Code to include all children
as defined in the Constitution and, secondly, the deletion of the word '"extra-marital" in s70 (I)
(a) of the code such that young girls are protected from the detriment effects of early indulgence.

In the case of Kawenda and Another V Minister of Justice,Legal and parliamentary Affairs
highlights the supremacy of the constitution through the amendment of the Criminal Law and
Codification and Reform Act (Chapter 9:23).This implies that the failure of the criminal code to
protect the persons aged sixteen and seventeen from sexual exploitation and early marriages it
has been amended that the definition of a young person in s61 of the code to include children as
defined in the constitution. The provisions of section166 (3)(a) of the constitution were not to be
ignored, hence the respondent had to put aside the rule of criminal code and obey the demands of
the constitution.

The constitution is the yardstick and in Zimbabwe according to Section 212 of the constitution of
Zimbabwe is referred to as the supreme law of the land, anything that is inconstant with it is ultra
vires. The constitution as defined the basic principles and laws of a nation, state, or social group
that determine the powers and duties of the government and guarantee certain rights to the
people in it13 can help in proving that it is the supreme aw which governs all the institutions
found in Zimbabwe. In this case of Diana Eunice Kawenda v The Minister of Justice, legal and
parliamentary affairs,14 the supremacy of the constitution is brought to light when the applicant
argues that the Acts of Parliament should be harmonized with the constitution so that they
become intra vires with the supreme law of the land. Thus, the constitution prevails over
parliamentary Acts as shown in this case that for a statute to be valid it should be consistent with
the constitution.

In conclusion it is strikingly uncontested that the constitution by its nature is supreme, and any
law which is inconsistent with it is null and void an initio. This is supported by the
transformative nature of interpretation of the constitution with regards to its spirit, and the need

12
Constitution of Zimbabwe Amendment (No.20) 2013 Section 2(1)
13
Https://www.merriam-webster.com ( Accessed on 1 September 2022)
14
CCZ 3/22

7
to respect and protect fundamental human rights and freedom, as illustrated by the
unconstitutional nature of impugned statute.

BIBLIOGRAPHY

Books and journals

John Locke: “Social Contract”: the 2nd Treatise of Government

Lininghton, G: Constitutional law in Zimbabwe

Madhuku, L (2010): An Introduction to Zimbabwean law- Weaver press

Montesquieu; The spirit of laws 1748

Statutes

Constitution of Zimbabwe Amendment No 20 Act 2013

Criminal Codification

Cases

Ian Douglas Smith v Didymas Mutasa 1989 (3) ZLR 183

Madzimabuto v Ledner Burke 1968 (2) SA (284)

Bull v Minister of Home Affairs (1) ZLR 202.210

Minister of Home Affairs Berm V Fisher