The
Right
to
challenge
Unconstitutional
Laws
and
Conduct
:
The
Constitutional
Court’s
Ruling
In
a
judgment
delivered
earlier
this
year, Combined
Harare
Residents’
Association
&
Others
v
Minister
of
Local
Government,
Public
Works
and
National
Housing [link],
the
Constitutional
Court
considered
the
relationship
between
local
authorities
and
the
central
government.
We
analysed
the
Court’s
judgment
on
this
topic
in
Constitution
Watch
5/2024 [link].
In
the
course
of
its
judgment
the
Court
issued
progressive
rulings
on
the
right
of
citizens
to
challenge
unconstitutional
conduct
and
defend
the
Constitution,
and
we
shall
deal
with
that
aspect
of
the
judgment
in
this
bulletin.
Issues
in
the
Case
The
Constitutional
Court
was
being
asked
to
confirm
an
order
of
the
High
Court
declaring
section
314
of
the
Urban
Councils
Act
[which
empowers
the
Minister
responsible
for
local
government
to
overturn
decisions
and
resolutions
of
local
authorities]
to
be
unconstitutional
and
void.
Before
deciding
the
main
issue
–
i.e.
whether
section
314
is
unconstitutional
–
the
Constitutional
Court
had
to
decide
two
preliminary
questions:
-
First,
did
the
High
Court
have
jurisdiction
to
make
the
order
it
did? -
Secondly,
did
the
applicants
have
a
right
to
challenge
the
constitutional
validity
of
section
314
since
they
had
not
shown
that
any
of
their
fundamental
rights,
guaranteed
by
the
Declaration
of
Rights
in
the
Constitution,
had
been
infringed?
The
Constitutional
Court
answered
both
these
questions
affirmatively:
the
High
Court
had
jurisdiction
to
make
its
order
and
the
applicants
had
a
right
to
challenge
the
constitutionality
of
section
314.
The
Court
was
not
entirely
unanimous,
however.
Judge
Garwe
delivered
a
dissenting
judgment
in
which
he
considered
that
the
High
Court
should
have
declined
to
make
the
order
because
the
applicants
had
not
pleaded
their
case
properly
and
had
not
shown
there
was
an
actual
dispute
between
the
parties.
The
rest
of
the
judges
on
the
Court
did
not
take
so
narrow
a
view
however,
as
we
shall
explain
below.
Jurisdiction
of
the
High
Court
All
the
judges
of
the
Constitutional
Court
were
agreed
that
the
High
Court
as
a
general
rule
has
jurisdiction
to
enforce
the
Constitution
directly;
this
jurisdiction
is
given
by
section
171(1)(c)
of
the
Constitution.
The
only
exceptions
are
set
out
in
section
167(2)
of
the
Constitution,
which
gives
the
Constitutional
Court
exclusive
jurisdiction:
-
to
advise
on
the
constitutionality
of
proposed
legislation,
where
the
legislation
has
been
referred
to
the
Constitutional
Court
by
the
President
or
by
a
Vice-President
or
Minister -
to
decide
disputes
in
presidential
elections
and
disputes
over
the
qualifications
of
a
Vice-President,
and -
to
decide
whether
Parliament
or
the
President
has
failed
to
fulfil
a
constitutional
obligation.
In
all
other
cases,
the
High
Court
has
jurisdiction
to
enforce
the
Constitution
and
decide
applications
challenging
the
constitutional
validity
of
legislation.
Grounds
on
which
the
Constitutionality
of
Laws
can
be
Challenged
All
the
judges
of
the
Constitutional
Court
agreed
that
an
applicant
who
challenges
the
constitutional
validity
of
a
law
does
not
have
to
show
that
his
or
her
rights
under
the
Declaration
of
Rights
have
been
infringed
by
the
law.
Instead,
the
majority
of
the
Court
held
that
the
constitutionality
of
a
law
can
be
challenged
by
persons
relying
on
section
2(1)
of
the
Constitution
or,
more
broadly,
on
the
principle
of
legality.
Section
2(1)
of
the
Constitution declares
the
Constitution
to
be
the
supreme
law
and
invalidates
any
law,
practice,
custom
or
conduct
inconsistent
with
it.
The
majority
of
the
judges
held
that
section
2(1)
arguably
implies
that
anyone
who
can
show
some
connection
to
a
law,
practice,
custom
or
conduct
is
entitled
to
approach
a
court
to
have
it
declared
invalid
on
the
ground
that
it
is
inconsistent
with
the
Constitution.
The
principle
of
legality: Under
this
principle,
administrative
conduct
is
legitimate
and
valid
only
if
it
is
authorised
by
a
law;
anything
done
in
contravention
of
a
statute
or
the
Constitution
is
ultra
vires
and
void.
This
principle
gives
the
High
Court
jurisdiction
to
rule
on
the constitutional validity
of
laws.
Legal
Standing
of
Persons
to
Challenge
the
Constitutionality
of
Laws
Under
the
common
law,
only
persons
who
can
show
a
direct
or
substantial
interest
in
a
legal
issue
have
the
right
to
apply
to
a
court
for
the
issue
to
be
decided.
The
right
to
challenge
the
constitutional
validity
of
laws
is
much
wider,
according
to
the
Court:
“direct
challenges
to
assert
the
supremacy
of
the
Constitution
must
be
open
to
all
citizens
who
are
civic
minded
and
wish
to
see
the
rule
of
law
prevail.
Only
those
who
bring
frivolous
and
vexatious
proceedings
without
any
intention
of
obtaining
relief
from
such
proceedings
must
be
denied
standing
and
audience
by
the
courts.”
Applicants
do
not
have
to
show
that
one
of
their
fundamental
rights,
guaranteed
by
the
Declaration
of
Rights,
has
been
infringed
by
the
law
that
is
being
challenged.
Judge
Patel
suggested
that
the
Court
should
give
rulings
on
constitutional
questions
of
paramount
public
and
national
importance,
even
on
the
application
of
persons
who
cannot
show
a
direct
and
substantial
interest
in
the
issues
in
dispute.
Comments
The
Constitutional
Court’s
rulings
on
the
jurisdiction
of
the
High
Court
to
decide
constitutional
issues,
and
the
right
of
parties
to
bring
constitutional
issues
to
court
in
the
public
interest,
are
a
welcome
departure
from
the
Court’s
previous
decisions,
which
by
narrowly
insisting
on
procedural
correctness
allowed
the
Court
to
avoid
deciding
important
constitutional
issues.
Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied
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