On 14 January 2008 I entered for the first time the court-room of the Supreme Court of Zimbabwe. On this day I was scheduled to be in Pretoria to begin my LLM studies at the University of Pretoria but I had refused to forego the opportunity of a debut appearance before the highest court in the land. As a young legal practitioner I had decided to utilise every opportunity that came before me which advanced my career.Even though the matter was a pro deo (where the attorney charges no fees) one, the prospect of winning my first Supreme Court case was worth more than any money I could have been paid.
As I entered the courtroom I was surprised as it was rather small and fell short of what I had expected as a 'supreme' court. Nonetheless, I took my seat by the bar and was informed by the orderly that my case was the second of two cases that were to be heard that day.Just after 1000hrs we all rose as the court orderly had ordered and the three Supreme Court judges entered the court and took their respective seats. It was my first time to set eyes on the honourable Malaba JA as before I had only read his name from the law reports. It is interesting to be able to put a face to a name as in law we get to know these judges very well but if we are to meet them in the street we will pass them like strangers. Malaba JA took the seat to my left whilst Ziyambi JA (a female judge) took the centre seat with the newly appointed former judge president Garwe JA taking the right seat.
After the first case had been heard I confidently stood up, cognisant of the fact that my time to shine had now come. I had postponed my flight for this moment and was not going to waste it for any reason. Notions of justice that were learnt in law school reflected prominently in my head. I was not being paid for this case yet I had done so much research and here I was with my opponent a prominent lawyer who, unlike me, was being paid so much to be here.
I was most certainly a champion of justice, or so I believed.The case involved a male secretary who had been dismissed from work in 1995 by a local university after it had been alleged that he allowed students to make phone calls and received money for such calls. Appeals to lower courts had been unsuccessful and our firm had been allocated the present appeal, in forma pauperis3 by the Registrar of the Court. I was going to argue the case on the basis of procedural justice in that the decision to dismiss my client was procedurally incorrect as he had not been given an opportunity to cross-examine any of the witnesses, among other heads. I felt my research had been adequate and my chances of winning the case were high. What I needed now was my opportunity to present my arguments.
I introduced myself to the Court and I was now prepared to start my arguments. Before I proceeded Malaba JA stopped me and started asking me a series of questions regarding the dates when the appeal was filed and when the leave to appeal had been obtained. The long and short of the story is the matter was struck off the roll with no order as to costs before I had really comprehended that my day of glory was not to be.The reason was that my client had first filed his appeal at the Supreme Court before going to the Labour Court and obtaining leave to appeal. He in fact should have done it the other way round.
I put forward arguments that this was minor and that the court could use its discretion and even that my client had been an ignorant self actor. I can safely say I made all the arguments any lawyer in my position would make, especially one who did not want to just have ten minutes in the Supreme Court.According to Malaba JA, the mistake by my client made the appeal a nullity and the appeal was therefore not even before them. It was an incurable defect, he said, and they had no choice but to throw out the case.
So this was my first meeting with Malaba JA, and what did I think of him? I thought he was a bad judge, incompetent, lazy and all the negative things a lawyer who has lost a case can think of a judge. Lawyers who lose cases are not the best of people to criticise the decision in a law journal or any other forums as they have a serious conflict of interest. So even though I still feel that Malaba JA's decision was wrong as it focused solely on minor procedural defects whilst ignoring the larger substantial matters, I will leave my distaste of that decision for informal social legal discourses.Fortunately, the case of Mike Campbell (PVT) LTD and Another v Minister of Lands and another (Campbell) has presented itself as a great opportunity to criticize Malaba JA as he was the one who wrote the unanimous court decision.
Although conflicts of interest are not good things, I have recently learnt that objectivity is not necessarily an essential ingredient in academic writing. As such, although I may not be the most objective person to be making this analysis, I think I have at least disclosed my conflict of interest if you can even call it that. So even though I may be robust in this analysis I will not be unfair.I, however, proceed firstly with the statement that the Campbell decision was both bad and wrong in law; and is another setback to Zimbabwe's rich human rights jurisprudence by the Chidyausiku led Supreme Court bench.
The FactsThe Zimbabwe government has faced several challenges in implementing its land reform programme. The biggest obstacle, in my view, has been the government itself. The disdain for the rule of law, the passion for rule by law and the need to solve the land ownership disparities overnight has resulted in a plethora of legal challenges by white farmers insisting on not having their farms taken away. Government lawyers have had to leave their routine duties to concentrate on these land issues alone.
This litigation has been a thorn in the government's foot and in 2005 the government devised a strategy to end all such 'obstructive' litigation.On 14 September 2005 Constitutional Amendment No 17 was introduced in to the Zimbabwean Constitution. Section16B would bar any land matters to be adjudicated by any court of law. This provision would have retrospective effect and would in effect remove the courts' jurisdiction from hearing pending matters and any future matters that may be brought before them concerning the acquisition of land by the government.
Mr William Michael Campbell has been a 'notorious' litigant defending his 'right' to have 'his' land. In fact it is litigants like Mr Campbell that resulted in the government having to make the above constitutional amendment. In 1997 the government first made its intention in terms of the Land Acquisition Act to acquire Mr Campbell's farm. He objected to the notice and it was withdrawn. All was well for some time until in June 2001 when a similar notice was served again on Mr Campbell. He objected on the same ground namely that, it was not reasonably necessary for the purposes of utilisation of the land for settlement for agricultural purposes.
Notwithstanding that objection, an order to acquire the land was made by the government. The order was, however, declared invalid on procedural grounds and set aside by the High Court in April 2002. In July 2004 the government served another notice to Mr Campbell and likewise, it was opposed on the same ground.4There were over 150 farmers that were at this time opposing the acquisition of their farms in court and this frustrated the government.
These challenges were seen as being made simply to delay the process in the hope that the land reform process would be reversed. With the enactment of Constitutional Amendment no 17 all land matters were thrown out by the courts as they no longer had jurisdiction to entertain the matters. As a matter of fact all agricultural land is now government property and all title deeds to such land are now invalid. This meant that the government could now proceed and acquire the land without all the court hassles.
In order to deal once and for all with the 'Campbells' of this world the government inserted a provision in the Criminal Law (Codification and Reform) Act (Chapter 9:23) that made it an offence to impede the land reform process. This means that anyone who say, refuses to leave the acquired land or destroys equipment will be charged with a criminal offence.Mr Campbell is really a thorn in the government's foot. In 2007, in response to the constitutional amendment, he launched a constitutional application with the Supreme Court in terms of s24 of the Constitution challenging the validity of constitutional amendment no 17. The crux of the argument was that the Constitution contains essential or core values that cannot be amended by the legislature.
One of these core values is the right to access the courts and protection of the law. The Court found this argument as totally baseless and relied mainly on the literal interpretation of the Constitution where the legislature has power to amend the Constitution.This paper disagrees fundamentally with the reasoning of the Court as enumerated by Malaba JA. It is unfortunate to note that, important as the matter was to fundamental human rights, the learned judges did not find any need to rely on international human rights law(even foreign law applying international human rights law) in coming to this decision. Instead there was reliance on some ancient cases decided in a time when human rights discourse was hardly known. The approach of the Supreme Court reflects a backward interpretation of the law where international human rights law is seen as a foreign law that has little value in deciding municipal cases.
This paper will therefore analyse the Court's reasoning and attempt to show some of the pitfalls in the Court's judgment.The Doctrine of essential features or core values of a constitutionThe 600 pages in thirteen opinions by the Supreme Court of India in the case of Keshavananda Bharati v State of Kerala5 has kept jurists busy in the past three decades debating whether this doctrine actually exists and its parameters. According to this doctrine there are certain features or values that exist in a constitution that cannot be amended by parliament even if all formalities are complied with. The doctrine reinforces the concept of the judiciary as having the final say in all constitutional amendments.The doctrine puts limitations on the power to amend the constitution on the basis that there are certain non-derogable features inherent in the constitution.
In the Indian court there was, however, no consensus on whether such a doctrine does or should exist and if it does what exactly are these basic features that cannot be amended.6 The decision made no reference to international human rights law and as such it is suggested in this paper that international human rights law should be construed as forming a non derogable framework to municipal human rights law.In South Africa there have been calls to reintroduce the death penalty after it was declared unconstitutional in the watershed decision of S v Makwanyane.7 It is therefore relevant to ask whether a constitutional amendment reintroducing the death penalty would be unconstitutional as the death penalty itself offends various rights in the bill of rights (including s1 of the Constitution) as was succinctly argued in the ratio of the decision which had ten concurring opinions. This question of the doctrine of core values is thus also relevant in South Africa with these recent calls to bring back the death penalty.
In Campbell the Supreme Court of Zimbabwe rejected the doctrine after it had been argued that the ousting of the courts' jurisdiction in land matters by a constitutional amendment was unconstitutional as it violated the basic values or essential features of the Constitution. It is argued in this paper that this doctrine should exist as it advances the cause of human rights by placing limitations on amendments that can be made to human rights as provided in national constitutions. It is further suggested that the core values should not be lofty ideals as seen by judges but rather should be derived from international human rights treaties as negotiated, agreed, signed and ratified (or acceded) by national governments.
