“Bringing our Constitution to Life”

via “Bringing our Constitution to Life” – The Zimbabwean 26 April 2015

Aligning Laws with the Constitution:

Ever since the Constitution was enacted in 2013 — in fact even before its enactment — Veritas has repeatedly urged the Government to bring existing laws into line with the Constitution and to enact new laws needed to implement the Constitution [in Constitution Watches published in 2013 and 2014]. In recent months the issue of constitutional alignment has been taken up by other organisations, and this seems an appropriate time to issue a progress report on what the Government has done so far.

In this and subsequent Constitution Watches we shall consider changes that must be made to our law in order to give effect to the Constitution, indicating what if anything the Government has done in that regard. We shall deal first with changes that are needed to give effect to the Declaration of Rights and then with those needed to give effect to other parts of the Constitution. The order in which we deal with the changes does not necessarily indicate their relative importance: the Constitution is the supreme law of the land and has been in operation for just under two years, so all the changes needed to make it fully operational are important and must be made as soon as possible.

A. Implementation of the Declaration of Rights

In this section we shall deal with the changes needed to implement the Declaration of Rights, which guarantees fundamental human rights and freedoms to everyone in Zimbabwe.

1. Criminal Law and Procedure

Section 50 of the Constitution, which forms part of the Declaration of Rights, gives people who have been arrested or detained essential rights to ensure they are treated humanely, and section 70 gives them further rights to ensure that, when they come before a court, they receive a fair trial. The right to a fair trial is itself guaranteed by section 69.

The Criminal Procedure and Evidence Act must be amended to bring it into line with these sections. The urgency of this cannot be over-emphasised: the fairness of criminal trials that are now taking place must be judged against the Declaration of Rights in the Constitution, not against the law as it used to be. In particular, the following provisions of the Criminal Procedure and Evidence Act are unconstitutional:

Section 32, which allows arrested persons to be detained for longer than 48 hours either because the 48-hour period expires on a non-court day or because a justice of the peace has issued a warrant for their further detention. Under the new constitution only a court can extend the period beyond 48 hours.

Section 42(2), which allows persons to be killed if they try to escape from a lawful arrest. The right to life under section 48 of the Constitution cannot be limited.

Sections 66(6) and 68(6), which require accused persons to disclose their defence cases before trial. Under sections 50 and 70 of the Constitution they have a right to remain silent.

Sections 67, 115, 189, 199 and 257, which allow adverse inferences to be drawn from an accused person’s silence. Adverse inferences cannot be drawn from an exercise of a constitutional right.

Section 117, which imposes severe restrictions on an accused person’s right to bail. Under section 50(1)(d) of the Constitution, on the other hand, arrested persons are entitled to bail “unless there are compelling reasons justifying their continued detention”.

Section 337, which prescribes a mandatory death sentence for murder in the absence of extenuating circumstances, is inconsistent with section 48 of the Constitution, which allows a law to provide for the death penalty only in very limited circumstances.

Section 353, which allows corporal punishment to be imposed on young boys. This amounts to cruel and inhuman punishment, prohibited by section 53 of the Constitution, as our Supreme Court held in 1989.

The list is by no means exhaustive.

In addition, the Act does not provide for arrested persons to be advised of their right to silence, or for their right at State expense to contact their lawyers and medical practitioners [guaranteed by section 50 of the Constitution]. Nor does it provide for persons in police custody to be visited by their families and friends [guaranteed by section 50(5)(c)].

Convictions following trials conducted in accordance with the provisions of the Act listed above should be set aside on appeal or review because, since they do not comply with the Constitution, they are ipso facto unfair. The longer the necessary amendments are delayed, the more convictions will have to be set aside.

The Courts and Adjudicating Authorities (Publicity Restriction) Act is another Act that must be amended. It states in section 4 that Ministers can issue notices prohibiting parties in civil and criminal proceedings from passing information to each other. A Minister could therefore prohibit the prosecution in a criminal case from revealing information to the accused which might be vital for his defence. So the section violates the fair-trial provision contained in section 69 of the Constitution.

What has been done to implement these rights?

The Government published a Criminal Procedure and Evidence Amendment Bill a couple of weeks ago. It falls woefully short of making all the amendments that have to be made to the Act. A full analysis of the Bill will be published in a future Bill Watch. There seem to be no plans to amend the Courts and Adjudicating Authorities (Publicity Restriction) Act.

2. Right to legal representation in criminal and civil proceedings

Section 69(4) of the Constitution gives everyone a right to legal representation before “any court, tribunal or forum”. So statutory provisions which deny litigants the right to be represented by lawyers before traditional courts or small claims courts, for example, are unconstitutional.

The Customary Law and Local Courts Act and the Small Claims Courts Act should be amended to remove those provisions.

Incidentally, employers should note that the right to legal representation applies even to disciplinary proceedings against employees, whether they are conducted under the Labour Act or under rules drawn up for a particular workplace.

3. Rules of court

Rules of the Constitutional Court must be enacted, either in a separate Constitutional Court Act or under the Supreme Court Act, to give effect to the court’s constitutional jurisdiction. This should have been done before the Declaration of Rights came into operation in May 2013, and in the absence of proper rules the Constitutional Court has had to deal with constitutional cases under the old Supreme Court Rules, which are seriously inadequate. The rules must cover matters such as confirmation of orders of unconstitutionality made by other courts [section 167(3) of the Constitution] and amici curiae – independent organisations allowed to make representation on a case [section 167(5)].

Rules of court for the Supreme Court, the High Court and magistrates courts also have to be enacted to allow those courts to exercise their new constitutional jurisdiction.

What has been done?

So far, no new rules have been produced, though it is understood that the Government has engaged consultants to draft Constitutional Court rules.

4. Rights of women and children

The effect of section 80 of the Constitution, which forms part of the Declaration of Rights, is that laws must not discriminate in any way between men and women, particularly in relation to custody and guardianship of their children.

The Guardianship of Minors Act needs to be revised so that it confers equal rights on mothers and fathers — at present it assumes that fathers are the guardians of children (section 3) and favours mothers in regard to the custody of children.

The Matrimonial Causes Act must be amended to alter the current position under which the law of the husband’s domicile governs rights of both parties in a marriage.

In regard to children, the Marriage Act and the Customary Marriages Act must be amended to prohibit child marriage. Section 81 of the Constitution protects children against all forms of abuse, and child marriage is regarded throughout the world as an abuse.

What has been done?

The Government has done nothing so far. Veritas has taken steps to have the law aligned to implement these important constitutional rights [details will be published in future bulletins].

4 Freedom of assembly and association

Section 58 of the Constitution guarantees freedom of assembly and association, and section 59 gives the right to demonstrate and present petitions.

The Public Order and Security Act should be amended to protect these freedoms and prevent their violation. In its present form the Act severely restricts freedom of association, and the following amendments must be made as soon as possible:

Section 25 of the Act, which requires notice of public gatherings to be given to the police, should be amended to make it clear that the police have no power to refuse permission for peaceful gatherings, and that failure to give notice will not render a gathering unlawful or make the convenor liable to criminal prosecution.

Magistrates, rather than police officers, should be given power to prohibit gatherings, and then only if the gatherings are likely to lead to public disorder.

Whenever the police use force to disperse a gathering or to quell disorder at a gathering, they should be compelled to prepare a detailed written report and to provide the convenor of the gathering with a copy of the report.

The Private Voluntary Organisations Act, which prohibits charitable organisations and many other types of associations from functioning unless they are registered by the Government, should be amended to limit its unduly wide scope.

What has been done?

Nothing.