LUKE MALABA
THE first observation to make about constitutionalism is that it is a broad and expansive concept. It is generally distinguished by respect for the principles of limited government, the rule of law, the separation of powers, democracy, and the protection of individual rights and freedoms.
These foundational values and principles are necessary to preserve a just and democratic society that is based on openness where people’s rights are protected and the government is answerable to the people.
The constitution is the bedrock of constitutionalism. It imposes objectives and standards by which the operations and conduct of the executive, the legislature, the judiciary and the other agencies of the state are measured.
The judiciary shoulders the duty, at individual and institutional level, to act in the manner that is prescribed by the values and principles embodying the standard of the conduct prescribed by the constitution. Its conduct must resonate with the vision and aspirations of the people grounded in the framework of the constitution.
As has been stated on previous occasions, it is the constitution which establishes the judiciary as the third arm of the state. The state itself is a constitutional state, being a creature of the constitution. The constitution is a living document, whose significance extends beyond mere ideals captured in the text.
Its preamble demonstrates that beyond doubt. It commences with the words “We the people of Zimbabwe” and ends with an affirmation that the people of Zimbabwe commit themselves to the constitution “as the fundamental law of our beloved land”. The commitment expressed is in effect a way of living that is governed by the norms pronounced in the constitution.
Constitutionalism thus becomes a living objective and culture by which the people will always measure their conduct as a group. The duty to interpret the law that is imposed on the judiciary and the public offices of justice developed for this purpose are a reflection of the commanding nature of the constitution.
This is because the constitution not only creates the duty and the offices but also prescribes the manner and timing of exercising the powers that it gives. It also prescribes the remedies for failure to act constitutionally.
That understanding is consistent with the founding values and principles contained in section 3 of the constitution. The provision denotes that Zimbabwe is founded on respect for the supremacy of the law, the rule of law, fundamental human rights, and the nation’s diverse cultural values.
Of note is the acceptance that the values and principles in section 3 are relevant to every institution in the sovereign state. No individual or entity is above the clear demands of the constitution. It sets the tone and standards of the required conduct and performance whilst fostering a culture of compliance. That comprehension of the founding values and principles dovetails with the preceding section 2(2) of the constitution, which stipulates that:
“(2) The obligations imposed by this constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.” (emphasis is added)
The feature of constitutions providing for fundamental aspects of creating a legal order gives constitutions their relevance in the present and the future. Constitutions are accordingly regarded as always speaking to the shared aspirations and expectations of the people at any given time.
One might wonder why the judiciary has set out to achieve this ambitious objective. The answer is to be found in the constitutional text. The role of the judiciary as an arbiter of justice, in the exercise of the authority derived from the people in terms of section 162 of the constitution, is to foster compliance with the constitution.
The core reason for the judiciary’s establishment is to be the final port of call regarding the interpretation of both ordinary statutes and the supreme law of the land.
An effective judiciary is one that is cognisant of the importance of constitutionalism. It must be able to perceive threats to the expected constitutional standards of behaviour imposed on everyone. By interpreting and applying the law without discrimination and in a transparent manner, the courts ensure that the fundamental role of the constitution as the driver of a just, harmonious and peaceful society is fulfilled.
To effectively uphold the rule of law, processes and decisions of the judiciary in dispensing justice must adhere to the principles of fairness, equality, impartiality and legality.
It must be noted that the relationship between the judiciary and the constitution in this regard is a dynamic and evolving process, because courts are both a creation of the supreme law and its custodian.
On the one hand, the courts have procedural and substantive laws that guide their operations in the exercise of the judicial authority; yet, on the other hand, the courts are ultimately responsible for preserving the sanctity of the supreme law. Thus, the courts by committing to and operating in compliance with the values and the standards of the constitution are actively entrenching constitutionalism.
In terms of section 46 of the constitution, the courts are compelled to promote the values and the principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom when dealing with matters that involve potential violation of fundamental human rights and freedoms.
The values and the principles set out in section 3 of the constitution are specifically identified as being central to the realisation of a democratic society that embodies openness, justice, human dignity, equality and freedom.
This finding of both law and fact articulates the objective that the judiciary as an institution is endeavouring to deliver by dedicating focus to the entrenchment of constitutionalism.
Constitutionalism is, by design, intended for the protection of human dignity, which is in turn set out in section 3(1)(e) of the constitution as a foundational value.
Constitutionalism is a manifestation of the degree and level of protection of human dignity that people commit to. It is also a demonstration of the level of consciousness by a people of the need for the protection of human dignity.
The constitution was made with the interests of the people in mind. The reason for this is that respect for human dignity extends to ensuring compliance with the provisions of a constitution.
The people are enabled to participate in matters involving the constitution through their chosen representatives. The public is at the epicentre of the existence of the constitution and its established procedural and substantive mechanisms for fostering compliance with its fundamental values and principles.
Those who live in a state of harmony with society must feel protected by the judiciary’s adherence to the concept of constitutionalism. Even those who are engaged in acts of lawlessness must feel that the courts, when administering the justice they deserve, are acting in a manner that reflects a consciousness of the overarching supreme command of the constitution.
Accordingly, the judiciary is committed to ensuring that the vision couched in the constitution of a democratic society based on openness, justice, human dignity, equality and freedom becomes a reality to every person who interacts with the justice delivery system.
Judges and magistrates must be agents of constitutionalism through observance of the principles that guide the judiciary in terms of sections 164 and 165 of the constitution.
Judicial officers are the gatekeepers of the constitution. It is therefore imperative that their conduct remains lawful and beyond reproach at all times. It is the only way that the public will retain confidence in the judiciary. Where there exists the unfortunate scenario of judicial officers whose conduct is reproachable and is in violation of the provisions of the constitution or the judicial Code of Ethics in the case of judges and the Judicial Service Regulations and the Magistrates Code of Ethics in the case of magistrates, it will be inevitable that the relevant disciplinary measures will be invoked.
There is the grim potential to undermine constitutionalism by condoning or legitimising unlawful conduct by judicial officers which erodes the outlined fundamental values and principles of the constitution. It is regrettable and unfortunate that over the years, including the year under review, the judiciary lost judges and magistrates pursuant to the invocation of mandatory disciplinary measures necessitated by the doctrine of constitutionalism. The public’s expectation is that the provisions of the constitution must be strictly applied. In that regard the Judicial Service Commission (JSC) will not shy away from enforcing and entrenching the constitutional obligation.
The constitution equally recognises the interconnection between the administrative and the judicial functions within the judiciary. As such, the non-judicial members of the judicial service have a corresponding responsibility to promote constitutionalism.
The judiciary relies on members of the judicial service to provide the required administrative support in a manner that is consistent with the functions of the JSC set out under section 190 of the constitution.
The support services provided to the courts must enable the courts to perform their constitutionally provided mandates efficiently and effectively. This support services function, apart from providing the required human and material resources to the courts, must as of necessity attend to the Judges’ and the magistrates’ conditions of service.
Whilst the sterling work done by the JSC through the secretariat in supporting the courts and by extension the financial support provided by Treasury is acknowledged, improvement of conditions of service of the judiciary as a matter of priority remains consistent with the ideal of promoting constitutionalism.
As the nation celebrates a decade of the existence of the constitution, the JSC is happy to announce that Zimbabwe will host two important constitutional conferences during the course of the year.
About the writer: Luke Malaba is Zimbabwe’s Chief Justice. This is an extract from his address at the official opening of the 2024 legal year. The theme of his speech was The role of the Judiciary in Entrenching Constitutionalism
