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 He objected to the notice and it was withdrawn.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.
There 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 constitution
The 600 pages in thirteen opinions by the Supreme Court of India in the case of Keshavananda Bharati v State of Kerala 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. 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. 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.
The Court’s reasoning
In Campbell, the Court noted that the bill of rights were a fundamental law of which the validity of all laws were tested against. It defined a fundamental law as ‘being a supreme law [that] cannot have any other law above it...’ Being a supreme law, the Court went on to add that there can be no law that can be used to determine whether such law (the Constitution) is valid or not. It is submitted that this reasoning is erroneous as it totally ignores international law obligations of Zimbabwe.
Suppose for instance a constitutional bill is introduced to amend the bill of rights so as to allow the police to use torture in circumstances that concern the national security of Zimbabwe. It goes through the proper parliamentary procedures and it is eventually signed by the president in to law. Would this amendment which violates provisions in the Convention Against Torture (CAT), The African Charter on Human and Peoples’ Rights (ACHPR), the International Convention on Civil and Political Rights (CCPR) to name but a few human rights treaties, be permissible simply because it has gone through the proper channels?
The answer to this question is obviously in the negative as certain rights can never be taken away from people. That is why they are called fundamental human rights. What is fundamental, it is submitted, is not the document in which the right is contained but it is the right itself. The right must even be allowed to exist without the document. It is therefore argued in this paper that the right to protection of the law, which includes access to courts, is a fundamental right which cannot be taken away by constitutional amendments.
According to the Court, however:
It would be improper for the Court to create by construction its own limitations, restrictions or conditions in addition to those imposed in express terms by the makers of the Constitution under s 52(1) of the Constitution.
The judgment also quotes the Indian judge Ray J who held in the Keshavananda case that:
When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable.”
According to this approach, the Constitution has strict procedures that apply to its amendment and if such strictures are adhered to there is no basis for the Court to impose any other procedures. This approach ignores the fact that the Constitution does not impose any restrictions on the substance of the amendment. In other words it is silent on the substance or the nature of the amendment. Where there is such lacuna then the judiciary is therefore free to manoeuvre in its interpretation mandate in order to ensure that justice is done.
The approach taken by the Court is a restrictive approach and does not conform to the generous approach advocated for in other Zimbabwean Supreme Court cases. Guidance should have been sought from the former Chief Justice of Zimbabwe, Dumbutshena CJ, who saw judicial activism as a tool to achieving social justice by interpreting human rights in a generous and purposive way to give effect to human rights particularly in the African setting where there were so many odds against them.
A basic question that the Court should have posed in rhetoric is ‘what are human rights?’ Are they simply what the government of the day says they are, or they have a deeper source? According to the learned judges:
The question what protection an individual should be afforded under the Constitution in the use and enjoyment of private property is a question of a political and legislative character.
This reasoning is, with respect, deeply erroneous. Without delving in to the natural law or positivist debates it is submitted that the source of human rights in the national sphere should transcend national constitutions and proceed to international human rights treaties. It is these treaties that should provide a core obligation to which there can be no derogation. It is further submitted that an activist approach demands that where there is a conflict between municipal human rights law and international human rights law the judge must seek guidance from the international standard. This view seems to be also shared by the African Commission which has previously held that
[t]o allow national law to have precedent over the international law of the (African) Charter would defeat the purposes of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law.
It is sad to note that the full bench echoes a government slogan that the land issue is a political one that has no business in the courts. The use and enjoyment of private property is a human rights question not exclusively in the political domain and there is no need for the courts to fear adjudication of such matters. The result of such adjudication is another matter but the courts are certainly empowered to decide when a restriction on the use of private property violates human rights.
The trend in Zimbabwe seems to be that international human rights law is for international bodies. Although Zimbabwe has signed and ratified nearly all the major international human rights instruments it has hardly applied them in its domestic jurisprudence. Zimbabwe is a dualist state and the municipal lawyer would be quick to argue that since those instruments have not been domesticated they do not form part of the law of Zimbabwe. The international lawyer would, however, defeat this argument by raising Article 27(1) of the Vienna Convention on the Law of Treaties which provides that ‘a State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty.’
In other words, Zimbabwe has an obligation to comply with its international human rights treaty obligations regardless of any internal laws it may pass to evade such compliance. An activist approach also demands that dualist technicalities in incorporating human rights treaties that have been ratified should not impede the Court in applying such treaties so as to ensure that the government complies with the spirit and object of the treaty.
Furthermore, in the case of Kachingwe and Others v Minister of Home Affairs and Another the Supreme Court mentioned in obiter that it ‘had no doubt’ that the ACHPR and the CCPR had been integrated in to Zimbabwean law even though there was no express law to that effect. The current bench should therefore not have hesitated to use these instruments as a benchmark to Constitutional Amendment no 17.
The judgment concedes that the effect of Constitutional Amendment no 17 ‘is the taking away of the right to protection of law afforded to the right of property in agricultural land acquired in terms of s 16B (2) (a)’. What the Court does not continue to probe is the extent to which this right is also protected by Article 3 of the ACHPR which provides that ‘Every individual shall be entitled to equal protection of the law’ and Article 7 which provides that ‘Every individual shall have the right to have his cause heard’. The extent to which Zimbabwe or any state party to the ACHPR can amend its constitution should remain in the confines of its international law obligations. It therefore should not be the case that a constitution is the fundamental law and there is no higher yardstick to test its validity as suggested by the learned judge.
Authorities cited by the Court include Winter v Administrator-in-Executive Committee where it was held that
The Legislature’s competence to enact a statutory provision ousting the jurisdiction of the courts in respect of certain matters (however undesirable in itself) is indisputable.
This case was decided in the old dispensation when there was parliamentary supremacy in South Africa. It does not apply to a constitutional supremacy state where the courts have powers of judicial review over all acts performed by the executive and the legislature.
A South African authority that should have been cited by the learned judges is that of Premier of Kwa-Zulu Natal v President of the Republic of South Africa where the Constitutional Court said,
[i]t may perhaps be that a purported amendment to the Constitution following the formal procedures, prescribed by the Constitution, but radically and fundamentally restructuring the fundamental premises of the Constitution, might not qualify as an amendment at all.
This approach therefore insists on a differentiation between amending the Constitution and abolishing it altogether. An ‘amendment’ of a right which takes away the right should not qualify as an amendment and should be declared unconstitutional.
The Court continues to justify its decision as follows:
The right to protection of law under s 18(1) of the Constitution, which includes the right of access to a court of justice, is intended to be an effective remedy at the disposal of an individual against an unlawful exercise of the legislative, executive or judicial power of the State. The right is not meant to protect the individual against the lawful exercise of power under the Constitution.
This reasoning is, respectfully, also flawed in that one can only get to realise whether the exercise of power was lawful or not through constitutional scrutiny by a court. If one is deprived that opportunity of approaching a court of law for redress then the right is violated.
The Court further argues that:
[T]he taking away of the functions of judicial power and giving them to a tribunal which is not a court of law is as valid an exercise of legislative power as the taking away of the functions and letting them lie dormant without giving them to any other body to discharge.
It is inconceivable how parallels can be drawn between having a non-judicial tribunal hearing disputes and having none all together. It is entirely different. What seems to be forgotten by the learned judges is that the ultimate purpose of any such bodies is to provide an effective remedy to the litigant. Litigants are hardly concerned as to the nature of a body as long as it is able to provide an effective remedy (although a judicial body is preferable and there is no violation of the separation of powers). So the assertion that it is equally valid for the legislature to remove the protection of law altogether as it is to provide a non judicial tribunal is surely ill advised.
Conclusion
Land reform is as important in Zimbabwe as it is everywhere in Africa. Economic reforms in post colonial societies necessarily require that the means of production be not owned by a tiny fraction of the population while the huge majority remain workers, if employed at all. The need, however, to carry out such reforms within an appropriate legal framework that maintains respect for human rights cannot be overemphasised.
In applying and interpreting the law, the Supreme Court of Zimbabwe has decided to take a back seat in land matters. It may be argued that the Court is more than willing to sacrifice its legal legitimacy in order to protect it institutional security. In other words the Court will forego making sound judicial decisions so as to not offend the political powers that guarantee the institution of the Court. In Zimbabwe this is not a remote concern as the government has previously removed nearly all the Supreme Court judges for making land decisions that were not in the governments favour.
Nonetheless, the doctrine of core values of a constitution brings with it challenging and interesting jurisprudential factors to African human rights. The Supreme Court of Zimbabwe should have used this opportunity to develop the doctrine by emphasising the ACHPR, international human rights treaties and international human rights law as a whole, as forming a foundation and pillars of constitutional and human rights law which cannot be torn down by parliamentary amendments. It is unfortunate that in the Campbell decision Malaba JA made erroneous arguments that did not advance an understanding of the doctrine in any way. What is even more despondent is the wordless concurrence of the other four judges of the Supreme Court including the Chief Justice.
In the Keshavananda case 13 judges wrote separate opinions agreeing and disagreeing with each other. This undoubtedly reflects the individual independence of each of the judges. Noting the erroneous reasoning of Malaba J it is strange how all the other judges would wordlessly agree with him.
South Africa is in a more favourable position as s1 of the Constitution entrenches the values upon which the Constitution is based. Any amendment to the Constitution will have to conform to those values. But what if Parliament should decide to amend those values in s1 so as to make certain amendments to the bill of rights? It is in such a scenario that the doctrine of core values becomes important and the decision of Malaba JA would need to be attacked by the Constitutional Court.
Mr William Michael Campbell who is indeed a thorn in the Zimbabwe Government’s foot took his case to the SADC Tribunal where a final order was granted in his favour for the government not to appropriate his land in the manner they were doing so. The Zimbabwe government has since refused to comply with the Tribunal decision based on a number of illegitimate grounds.
Former chief justices Dumbutshena CJ and Gubbay CJ had moved a step in the right direction with regard to Zimbabwe’s human rights jurisprudence but as it stands Malaba JA and the Chidyausiku led Supreme Court bench have certainly taken Zimbabwe three steps back.
Reported on . No paragraph numbers are available in this judgment.
Admitted in Zimbabwe LLB (Fort Hare), LLM (Pretoria).. Many thanks to Tshepo Madlingozi, Tarisai Mutangi and Martha Bhunu for their comments on earlier drafts.
The Registrar of the High Court will appoint an attorney from his roster after a litigant has proved to him that he or she is a ‘pauper’ and cannot afford to pay legal fees.
The facts are common cause and are contained in the Applicants founding affidavit and in the judgment.
Anirudh Burman ‘Locating post-modern constitutionalism in India: the basic structure doctrine’ Accessed 20 July 2008.
According to Mapfumo T ‘Whither to, the judiciary in Zimbabwe? A critical analysis of the human rights jurisprudence of the Gubbay and Chidyausiku Supreme Court benches in Zimbabwe and comparative experiences from Uganda.’ Unpublished LLM dissertation, University of Pretoria 2005 ‘The Gubbay bench adopted and advanced the purposive and generous approach towards constitutional interpretation. The approach takes words in context of provisions from which they derive and the whole constitution to give effect to the true objective of the constitution. This way, the bench avoided narrow and pedantic interpretations and eschewed the “austerity of tabulated legalism”.138 See also the case of Rattigan & others v Chief Immigration officer 1995 (1) BCLR 1 (ZS) at 9.
E Dumbutshena “Judicial activism in the quest for justice and equity” in B Ajibola The judiciary in Africa (1998).
Media Rights Agenda and Another v Nigeria (2000) AHRLR 200 (ACHPR 1998) Para 66.
In December 2002 while addressing the ruling party congress on the adjudication of land matters by the Supreme Court which had been constituted by two white judges out of five President Robert Mugabe said ‘The courts can do whatever they want, but no judicial decision will stand in our way… My own position is that we should not even be defending our position in the courts.’
See F Viljoen International Human Rights Law in Africa (2007) where he notes the scant use of the African Charter in Zimbabwean jurisprudence 563.
Section 111B Constitution of the Republic of Zimbabwe.
According to Viljoen (above n16) the position may not really be that simple as it is not clear in most dualist countries where international human rights law lies in the hierarchy of laws. Most countries would take the view that the constitution is supreme and international human rights treaties come below the constitution. Such an interpretation defeats the purpose if international human rights law (and will most likely not be accepted by the African Court on Human and Peoples’ Rights or any other international body) 538.
[2006] 1 All SA 412 (ZS).
1973 (1) SA 873 (A) 884
.
The Supreme Court also bolstered its argument by using the case of Minister of the Interior and Anor v Harris and Ors 1952 (4) SA 769 (A) which also has little relevance in the new dispensation of constitutional supremacy.
Per Mahomed DP 1996 (1) SA 269(CC) Para 47. See also AJH Henderson ‘Cry the beloved Constitution? Constitutional amendment, the vanished imperative of the Constitutional Principles and the controlling values of section 1’ SALJ 1997 542 where he praises the dissent of Schreiner JA in Collins v Minister of Interior and Another 1957(1) SA 552 (A) where the learned judge of appeal was of the view that legislation which was apparently not unconstitutional would be rendered unconstitutional if it formed part of a legislative scheme with an unconstitutional purpose.
Mahomed DP also cites the case of Indira Nehru Gandhi v Raj Narain (1975) SC 2299 where it was held by Chandrachud J that “[The Constitution] did not confer power to amend the Constitution so as to damage or destroy the essential elements or basic features of the Constitution... The power to amend did not include the power to abrogate the Constitution... therefore the power of amendment does not include the power to destroy or abrogate the basic structure or framework of the Constitution.” (my emphasis). Para 47.
See also Githu Muigai ‘Towards a theory of constitutional amendment’ 1 E. African J. Hum. Rts. & Democracy 11 2003 who traces the history of parliament’s right to make constitutional amendments through English, American and Indian Law and concludes by saying, ‘the power to amend or alter the constitution cannot be a power to make a new constitution. It can only be a power to modify within known or ascertainable limits, the existing constitution… There are, without doubt, implicit limitations on the amendability of a written constitution’ 11 The author also sees the case of Bribery Commissioner v Ranasinghe [1964] 2 All ER 785, which was used by Supreme Court, as being outdated and not applicable in interpreting written constitutions in post colonial Africa.
The Court could also have sought guidance from the African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa where it is provided in Article C that ‘everyone has the right to an effective remedy’ which includes the right to access to justice. State parties are obligated to ensure that every person whose rights have been violated ‘has an effective remedy by a competent judicial body’.
In Media Rights Agenda (above n17) the African Commission also said that ‘[f]or a government to oust the jurisdiction of the courts on a broad scale reflects a lack of confidence in the justifiability of its own actions, and a lack of confidence in the courts to act in accordance with the public interest and rule of law.’ Para 81. The same may apply to the Zimbabwe Government.
See also Theunis Roux ‘Principle and Pragmatism on the Constitutional Court of South Africa’ accessed 20 July 2008 who convincingly demonstrates how the South African Constitutional Court has managed to maintain its institutional security without necessarily foregoing its legal legitimacy.
See AJH Henderson above n 19.