CONSTITUTION WATCH 5/2017
[May 29th 2017]
Do Laws have to be Aligned with the Constitution?
Must Laws be aligned to the Constitution? The answer is both “Yes” and “No”. We shall first look at why we say No, under the heading the Supremacy of the Constitution. We shall then examine the arguments for saying “Yes they do have to be aligned”.
Supremacy of the Constitution
The reason why laws do not necessarily have to be aligned with the Constitution is that the Constitution is the supreme law. Any statute or part of a statute [whether it is old or new] that is inconsistent with the Constitution is void and has no legal effect. In other words it is not a law.
This is expressed in section 2(1) of the Constitution:
“This Constitution is the supreme law of Zimbabwe and any law … inconsistent with it is invalid to the extent of the inconsistency.”
The section could hardly be clearer.
The Constitution, while nullifying laws or parts of laws that are inconsistent with it, does preserve pre-existing laws [i.e. laws that were in force before the Constitution came into operation in 2013] but only to the extent that they are consistent with the Constitution. This is stated in paragraph 10 of the Sixth Schedule to the Constitution, which reads as follows:
“… all existing laws continue in force but must be construed in conformity with this Constitution.”
The paragraph does not mean that existing laws continue in force even if they are inconsistent with the Constitution. All it means is that existing laws must be interpreted so as to conform with the Constitution. If they cannot be interpreted in this way – in other words, if they are so inconsistent that they cannot be brought within the ambit of the Constitution – then they are void by virtue of section 2(1).
This has been confirmed by court judgments [e.g. the judgment of the Constitutional Court in the case Veritas brought case against child marriage, and a judgment of the Constitutional court in South Africa where the court said: “The rule of invalidity of a law … is derived from the fundamental principle of the supremacy of the Constitution.”
Sometimes of course there may be genuine doubt about whether an existing law is consistent with the Constitution, and then the doubt has to be resolved by a court. But even in such a case, if the court decides that the law is unconstitutional it is not the court judgment that makes the law invalid, but rather the Constitution itself.
So Why is there Pressure on the Government to Align Laws?
While it may be legally correct to say that the supremacy of the Constitution makes it unnecessary to align existing laws with the Constitution, there are at least three good reasons for the Government to do so.
1. Alignment is part of the process of implementing the Constitution.
Delay in alignment indicate a lack of will to implement the Constitution, i.e. a disregard for constitutionalism and the rule of law and undermines the basis of the Zimbabwean State which is supposed to be a constitutional democracy. Four years after the Constitution came into force, progress in aligning our statute law with the Constitution has been fitful at best. Some 74 existing Acts of Parliament remain unaligned with the Constitution and many new laws which the Constitution says must be enacted have not appeared on the statute book. [A list of the unaligned laws and the laws that need to be enacted can be found on the Veritas website at this link]
2. Unaligned laws are difficult to apply
If laws are left unaligned it is difficult to judges, magistrates, law enforcement officers, civil servants and the general public to be sure what the law really is. If a judge or magistrate for example has to decide a case involving an unaligned law, he or she has to consider not just the provisions of the law itself but also the relevant provisions of the Constitution and any Constitutional Court judgments that may have a bearing on the law, and then in the light of those provisions and judgments he or she has to decide whether or not the law is constitutional, i.e. whether it really is a law. Only then can the judge or magistrate proceed to determine the factual issues in the case before the court. And police officers who have to enforce an unaligned law, or civil servants who have to administer it, cannot be expected to work out whether the law is valid or not before they can enforce or administer it. Members of the public are in an even more difficult position, having to decide without legal expertise whether or not they should comply with a law that may or may not be valid.
Two examples of such difficulties are:
· Prison officers have shot and killed prisoners who were trying to escape from prison. The prison officers were relying on section 30 of the Prisons Act, which purports to give them power to use firearms against escaping prisoners even if the prisoners are killed. Under the Constitution, however, the right to life is inviolable so section 30 of the Prisons Act is unconstitutional in so far as it authorises killing. The prison officers therefore are liable for unlawfully killing the prisoners even though they believed they were legally entitled to do so.
· In a case Veritas brought to the Constitutional Court, the Court ruled that prisoners sentenced to life imprisonment were entitled to be considered for parole, i.e. early release, even though the Prisons Act expressly forbade it. At a recent workshop to discuss the Prisons Act, it appeared that even senior prison staff did not know about the ruling and said that the Prisons Act would have to be amended if they were to set up parole hearings for these prisoners.
To remove these uncertainties and doubts the Government must align all Zimbabwe’s laws with the Constitution, and it should do so without further delay.
3. Alignment involves enacting new laws as well as amending existing ones
Some parts of the Constitution cannot be implemented without the enactment of new laws. Provincialisation or devolution of powers, is an example. Chapter 14 of the Constitution sets up provincial and metropolitan councils, but leaves it to Parliament to give them specific functions and to regulate how they may exercise those functions. No such law has been enacted, so even though councillors were elected in 2013 Chapter 14 of the Constitution remains a dead letter.
Another example is section 210 of the Constitution, which requires Parliament to enact a law setting up an independent mechanism for receiving and investigating complaints against the Police and other security services. No such law has been enacted.
Yet another example is the enactment of legislation to establish a Citizenship and Immigration Board responsible for granting and revoking citizenship, and issuing residence and work permits. This is mandated by section 41 of the Constitution, but the board has not been established because the legislation has not been enacted.
It must be recognised by all that the Constitution is the supreme law and overrides all other laws, and alignment is part of the process to see that the Constitution is implemented. Our laws are valid only to the extent that they comply with the Constitution. No matter how laborious the alignment process, the Government must expedite it, and Parliament should pressure it to do so.
Perhaps the Speaker could issue a statement calling on the Government to carry out its duty towards the people of Zimbabwe by accelerating the alignment of our laws, thereby making the Constitution an effective, living document.
The Constitution took years of resources and manpower in its making. If is not properly and timeously implemented all this effort will have been not only a waste of time but a deception and fraud perpetrated on the people of Zimbabwe and the international community.
Reminder – to download the Constitution onto any smart phone or tablet [excluding Apples] visit this link