APPLICANTS’ HEADS OF ARGUMENT
The Applicants seek two things. A declaration to the effect that the Respondents’ actions are unconstitutional in so far as they relate to the failure to enact the law envisaged by Section 210 and secondly a mandamus, with regards to compliance by the Respondents of the law in question.
Applicants’ right to approach this Honourable Court
The Applicants have a right to approach the present court based on two platforms. Any citizen, concerned, with the non-fulfilment of a constitutional obligation, by the State or any other board mandated to carry out a thing by the Constitution, has the right to approach the Constitutional Court.
The direct access to the Constitutional Court when it is in the interest of justice, is implied and confirmed in the Constitution itself. Section 167 (5) makes it clear that rules of the Constitutional Court must allow a person, when it is in the interest of justice and with or without leave of the Constitutional Court to bring a constitutional matter directly to the Constitutional Court.
Direct access therefore, on a constitutional matter, must only be restricted and judged or not it is in the interest of justice to bring the application.
Surely, where there is non-compliance with the Constitution itself, then it is in the interest of justice to bring such matter.
This is fortified as well, by the fact that Zimbabwe is a constitutional democracy. Section 2 of the Constitution makes it clear that the same is the supreme law of Zimbabwe, and any law, practice, custom or conduct inconsistent with the same is invalid to that extent.
The courts, and indeed the Constitutional Court, become the watchdog of constitutional compliance and in this regard, the Court would therefore entertain, any application, in the interest of justice, which gives it the opportunity of playing its watchdog rule.