Heads of argument (attached below) were filed in the High Court of Zimbabwe this morning by lawyers representing Mike Campbell (Pvt) Ltd (a Zimbabwean farming company) in a Supreme Court application in which the constitutionality of Amendment 17 to the Zimbabwean Constitution is challenged. Whilst this is a private initiative, and I should stress the MDC has not been involved with the case, I commend these Heads and the case generally.
Constitutional Amendment 17, passed in 2005, removed the right of the Courts to adjudicate in land acquisition matters. In doing so a horse and carriage was driven through the fundamental democratic right of due process, especially the right to have one’s rights determined by an independent court. The amendment also shattered any notion that we have a genuine separation of powers in Zimbabwe and that there is any reasonable balance between the powers exercised by the executive, legislature and judiciary.
Since the amendments were first tabled in Parliament our view in the opposition has always been that the amendments were so far reaching that they actually destroyed the very core of our Constitution, and therefore even though procedurally Amendment 17 was passed correctly in Parliament, it remains illegal. In essence our view has always been that one cannot pass any amendment to the Constitution, just because one may have a 2/3rds majority. There are some rights so sacrosanct, so part of the fundamental core and structure of the constitution, that if they are removed from a constitution, that constitution is rendered meaningless.
If Amendment 17 had been left unchallenged the Zanu PF regime would believe that it can amend any aspect of the Constitution with impunity. That certainly appears to be the mindset of Robert Mugabe and others in Zanu PF who believe that a Presidential term can be extended by a constitutional amendment. That notion too violates a core principle of any constitutional democracy, namely that universally politicians are elected for a defined and restricted period, with a limited time mandate, and once elected politicians cannot extend that mandate by simply amending the constitution. Accordingly it is in this context that this present case must also be seen in a broader context, namely a challenge to the notion that Zanu PF can change any aspect of the Zimbabwean Constitution at will.
These Heads, drafted by two of the finest Constitutional lawyers in Southern Africa, Jeremy Gauntlett SC and Adrian De Bourbon SC, make out ,in my view, an unanswerable case that the constitutional amendments excluding the jurisdiction of the Courts should be struck down.
Skeptics may question why constitutional challenges like this are brought before the Zimbabwean Supreme Court when so many other cases have been lost there since 2001. The reason is simple – we must make these arguments so that there is no hiding place for those in the Zanu PF regime who argue that they have acted lawfully. There must be an historical record for the future to show that these brazenly illegal acts were challenged; that there was never any consensus about what has happened. Furthermore we must do all we can to expose those judges who are more politicians than judges. They too must be given no place to hide in the future. Our Judges must confront these outrageous violations of our Constitution and choose where they stand. We need clear unequivocal statements from them to show whether they stand on the side of tyranny or justice.
One of the peculiarities of living under tyranny is that both the oppressors and the oppressed think that tyrannies last for ever. The oppressors continue to act (as vividly demonstrated in Amendment 17) as if they are not subject to universally accepted human rights and norms, and never will be. The oppressed are so downcast that they cannot believe that things will ever change. Bizarrely both oppressors and the people they oppress believe that the oppressors can do literally anything with impunity, indefinitely. History gives the lie to that fallacy. Zimbabwe will be no different; this tyranny will end, and possibly much sooner than anyone dares to hope for. And when tyranny ends justice, as the prophet Amos stated thousands of years ago, will “roll on like a riverâ€.
When tyranny ends in Zimbabwe the arguments raised in this case will help us to restore justice in many ways. Not only will the arguments be used to establish the individual rights of Zimbabweans but they (and the judgment which will eventually be handed down in response to the arguments) will also help us determine in future which judges are truly committed to the principles of a constitutional democracy, the rule of law and the application of universal human rights without fear or favour. There will be no place in the future democratic Zimbabwe’s judiciary for judges who clearly demonstrate now that they are not committed to those fundamental principles.
David Coltart MP
Shadow Justice Minister
Zimbabwe
Bulawayo
15th January 2007
IN THE SUPREME COURT OF ZIMBABWE Case No SC 124/2006
HELD AT HARARE
In the matter between:
MIKE CAMPBELL (PRIVATE) LIMITED First Applicant
and
WILLIAM MICHAEL CAMPBELL Second Applicant
and
THE MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR
LAND, LAND REFORM AND RESETTLEMENT First Respondent
and
THE ATTORNEY GENERAL Second Respondent
HEADS OF ARGUMENT FOR THE APPLICANTS
INTRODUCTION
1. In this matter, brought directly to this Honourable Court in terms of section 24 (1) of the Constitution of Zimbabwe, the Applicants seek the following redress in terms of section 24 (4):
a. A declaration that section 16B of the Constitution, introduced by the Constitution of Zimbabwe Amendment Act (No. 17) 2005, infringes fundamental rights to the rule of law and to due process entrenched in the Declaration of Rights, thus violates the essential features or core values of the Constitution and is accordingly
invalid and unconstitutional notwithstanding that it was enacted in compliance with the procedural requirements of section 52 of the Constitution;
b. A declaration that the Applicants rights to receive fair compensation for the acquisition of their property before or within a reasonable time after the acquisition of that property have been violated and accordingly the acquisition of the property is unconstitutional and of no force and effect.
Alternatively, redress in this respect is sought directing the acquiring authority to comply fully with Part VA of the Land Acquisition Act [Chapter 20:10] within 30 days of the date of the order of this Honourable Court.
c. A declaration that the acquisition of the farm belonging to the First Applicant was unlawful as it contravened the rights against discrimination based on colour enshrined in section 23 of the Constitution.
2. The Opposing Affidavit of the First Respondent takes this matter no further. His response advances no facts in rebuttal. No opposing papers have been filed by the Second Respondent. The matter is accordingly to be determined exclusively on the Applicant’s facts. The purpose of filing these Heads of Argument is to allow for the set-down of this matter without further delay by the Respondents.
ESSENTIAL FACTS
3. The First Applicant is the registered owner of a farm known as Mount Carmell. It became the registered owner in 1999 wi