CHIMAKURE & ORS v A-G 2014 (2) ZLR 74 (CC)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights c — s 24(5) — party having shown that enactment not reasonably justifiable in a democratic society — rule nisi calling on responsible Minister to show cause why enactment should not be declared to be in contravention of Constitution — object of giving Minister such opportunity — review powers not given to executive

Headnote

The Constitutional Court issued a rule nisi pursuant to s 24(5) of the former Constitution, calling on the Minister of Justice to show cause, on the return day, why s 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (publishing or communicating false statements prejudicial to the State) should not be declared to be ultra vires s 20(1) of the former Constitution and accordingly invalid. The Minister had not been a party to the proceedings. Under s 24(5), the Minister had a right to be given an opportunity to persuade the court that, although s 31(a)(iii) of the Code infringed the fundamental right to freedom of expression, it was reasonably justifiable in a democratic society.

On the return day no affidavit was filed by the Minister. What was filed was a lengthy document containing a critical review of the whole judgment of the court. The purpose of the document was to show that the court had misdirected itself in finding that s 31(a)(iii) had the effect of interfering with the exercise of the right to freedom of expression enshrined under s 20(1) of the former Constitution, and that the court erred in holding the prima facie view that s 31(a)(iii) of the Criminal Code was not reasonably justifiable in a democratic society. There was no attempt to show the existence of factors, which were not brought to the attention of the court, consideration of which would have persuaded it not to accept the prima facie view that the enactment was not reasonably justifiable in a democratic society.

Held, that it was not the purpose of s 24(5) of the former Constitution to give to the Executive review powers over decisions of the court. The object of s 24(5) was to give the responsible Minister, who was not party to the proceedings challenging the constitutional validity of an enactment, an opportunity to put before the court facts within his knowledge, and of which the court was unaware, with the view of persuading it not to find that the enactment is not reasonably justifiable in a democratic society. The reason is that the determination of the question of whether an enactment is reasonably justifiable in a democratic society requires a court to take into account a variety of factors at play in a democratic society. Some of the factors may relate to the policy behind the enactment. The Executive is responsible for the formulation of legislative policy as adopted by the Legislature. It is because of this important position of the Executive in the formulation of legislative policy that a Minister may have knowledge of factors that show that the legislation is reasonably justifiable in a democratic society. His task is to assist the court to arrive at a just decision on the question of the constitutional validity of the legislation. The fact that no affidavit was filed by the Minister meant that nothing said in the document satisfied the objective of s 24(5).