IN a twist of irony, the decision of the High Court in the matter in which the National Constitutional Assembly leader, Professor Lovemore Madhuku, in challenging the timing of the constitutional referendum reveals a good reason why the draft constitution is a better step forward compared to the current constitution.
Column by Alex T Magaisa
High Court judge Justice George Chiweshe dismissed Madhuku’s application on the basis that the President’s power to set the referendum date under the Referendum Act is non-justiciable.
In simpler language, the judge was saying the President’s power in this matter cannot be contested before a court of law.
The purpose of this note is not to discuss or comment on the merits or otherwise of the High Court decision in the Madhuku application.
However, it is a matter that demonstrates the controversy surrounding the non-justiciability clause and why it is important that the draft constitution excludes this provision.
The learned judge based his decision on section 31K of the current constitution. At the risk of oversimplification, when a matter is said to be justiciable, it means that it is capable of being decided by a court of law.
Conversely, when a matter is deemed non-justiciable, it means that it is a case that a court cannot adjudicate upon. In essence, a non-justiciable power cannot be contested and is beyond the court’s jurisdiction.
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Needless to say, this is a dangerous clause which is an assault on the principle of checks and balances. The facility of judicial review exists precisely to enable courts to adjudge the way in which powers are used by those on whom they are conferred.
The role of judicial review and the general principle of checks and balances is essentially to prevent the abuse of power. When, however, the exercise of certain powers is deemed non-justiciable, it leaves the holder of power with arbitrary power and arbitrary power is easily abused.
The important thing is that unlike the current constitution, the draft constitution does not include the same non-justiciability clause.
I remember during the negotiations that the equivalent of section 31K in the current constitution was deliberately omitted on the basis that it severely undermines the principle of checks and balances. The draft constitution does not place specific limitations on the justiciability of Presidential powers.
The limitation on the justiciability of Presidential powers was introduced through Amendment No 7 in 1987, which also introduced the Office of the Executive President.
The notoriety of Amendment No 7 lies in the fact that it created a fundamentally different political architecture where executive power became centralised in the Office of the President.
It is not surprising, therefore, that part of this architecture was section 31K, which ring-fences the exercise of Presidential powers from legal contestation before the courts of law.
Not only did it disempower people by making it more difficult to challenge the exercise of Presidential powers, it also made the courts impotent, which is exemplified by the decision of the High Court in the Madhuku case.
To make the President’s exercise of those powers non-justiciable is to place him above judicial scrutiny and potentially above the Constitution which he is expected to uphold.
The new constitution would ensure that the President’s exercise of his powers is justiciable depending on the subject matter.
If the Constitution is the supreme law of the land, then the President should adhere to it and everyone, including the President who is given power by the Constitution, must be subject to judicial scrutiny.
Having said all this, it is my considered opinion that dismissing the Madhuku petition on the grounds of non-justiciability was not justified.
The setting of a date for a referendum, just like for an election can impact on a person’s fundamental rights and therefore should be open to challenge and judicial scrutiny. The right to a fair trial also includes an obligation to grant affected persons access to a court’s process where the matter relates to their rights.
Therefore, where a person brings a case which raises his fundamental rights and freedoms, dismissal of the matter on the grounds of non-justiciability would be an infringement of the right of access to court. On that basis, the High Court decision sets a poor precedent in so far as citizens’ right to challenge the setting of referendum and election dates is concerned.
If the President were to flout the laws in setting the election dates, this power should be open to challenge. To ring-fence this power on the basis of non-justiciability would be unjustified and unreasonable.
