Online Reporter
Trust Maanda
Legal Position
CONSTITUTIONAL supremacy means that the Constitution is the highest law of the land and is above all other laws.
All laws, conduct and actions of any person or Government violating the Constitution can be declared null and void by independent courts, ensuring that the exercise of power is limited for the protection of the people.
The Constitution being supreme means that the Constitution is the yardstick against which all laws, conduct and actions are measured. If they are contrary to the provisions of the constitution, they are null and void to the extent of their inconsistency with the Constitution.
This means that if a law is against what the Constitution permits, the offending law or sections of it will be declared null and void.
When a law or action is not consistent with the Constitution, it is unconstitutional. That law or conduct can be challenged in court.
That principle of constitutional supremacy is captured in Section 2 of the Constitution of Zimbabwe.
It reads as follows:
2 Supremacy of Constitution
(1) The 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.
The clear import of this section is to deny any legitimacy to, and thereby make void and of no force, any law, practice custom or conduct that is inconsistent with the Constitution to the extent of the inconsistency. By virtue of this section, all laws, practices, customs or conduct that are not consistent with the Constitution are invalid by that very fact. Such a law or conduct cannot claim to be legal and cannot therefore have the force.
Section 2 of the Constitution creates a right to any person who wants to see the law being followed to seek redress in the court by seeking to challenge a law he perceives to be unconstitutional.
In other words, anyone who can prove their right to be heard can be clothed with a cause of action to approach the court to seek a law to be declared null and void for being unconstitutional.
In other words, Section 2 of the Constitution does create a cause of action.
Any person is entitled to approach a court for appropriate relief, as the section expressly declares that any law custom, practice or conduct inconsistent with the Constitution is void.
This implies, that anyone showing some connection to the offending or challenged law, is entitled to approach a court and have such law custom, practice or conduct declared invalid.
The provisions of Section 2 of the Constitution, is consistent with the principle of legality which also provides a cause of action for the direct enforcement of the Constitution under the broad principle of legality.
This is the principle by which all laws, conduct and practices regulating the exercise of power must be tested against a law to find, not only authority to exercise the power, but the legitimacy to do so. This principle when applied says that anything done in contravention of or contrary to the provisions of statute is of no force and effect.
This is commonly known as the ultra vires doctrine. This, though a common law precept, applies with equal force to anything done in contravention of the Constitution.
The ultra vires doctrine says anything done outside of the provision of a statute is not lawful. Applicable cause of action where an act is done outside of a statutory provision, is the principle of legality and in particular the ultra vires doctrine.
Constitutional supremacy then, is where the Constitution is supreme and all laws are judged by the constitution. If they are inconsistent with the constitution, the courts review the statute or action and strike them down. This doctrine curbs arbitrariness and is consistent with the rule of law, which means everyone, including Government is subject to the law, not above it.
Section 2, in giving someone a right to approach the court with an action, is different from the right to approach the court under Section 85 of the Constitution.
Section 85 is where a person approaches the court on any of the bases on which they have locus standi (legal standing) to seek redress. That section is when one must allege a breach of fundamental human right in that chapter.
Section 2 does not require an allegation of a breach of a fundamental right as long as one can allege and prove that the law they challenge is against an identified provision of the constitution.
Section 2 reinforces our constitutional democracy where power is shared by the Executive, Legislature and Judiciary.
The courts are independent and only subject to the Constitution. This means that courts have to act in accordance with the Constitution so that they themselves do not breach rights of citizens.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
