The Constitutional Court of Zimbabwe’s decision in Passionate Fuza and Jonah Wakurawarehwa v Parliament of Zimbabwe marks a significant moment in the development of participatory constitutionalism under the Constitution of Zimbabwe, 2013.
The case concerned a challenge to the enactment of the Private Voluntary Organisations Amendment Act, 2025 on the basis of alleged non-compliance with section 141(a), which requires Parliament to facilitate public participation in legislative processes.
While the court adopted an expansive approach to standing and affirmed the justiciability of participatory rights, it ultimately dismissed the application on evidentiary grounds, requiring proof of systemic failure or tokenistic participation.
This commentary argues that the judgment reflects a dual posture - normatively robust on principles governing access to the court (locus standi) but conservative in application to resolve substantive issues.
It contends that the court’s evidentiary framing narrows the practical enforceability of participatory rights and raises important implications for democratic accountability and civic space in Zimbabwe.
Introduction
The entrenchment of participatory democracy in Zimbabwe’s 2013 constitution represents a deliberate shift from parliamentary supremacy to a model of governance grounded in constitutional accountability and citizen engagement. Section 141(a), which obliges Parliament to facilitate public involvement in legislative processes, lies at the heart of this transformation.
The Constitutional Court’s decision in Fuza and Wakurawarehwa v Parliament of Zimbabwe provides a critical test of the enforceability of this participatory guarantee.
The applicants challenged the validity of the Private Voluntary Organisations Amendment Act, 2025 (PVO Amendment Act), arguing that disruptions to public hearings in Harare and Masvingo rendered the legislative process constitutionally defective and therefore nullifiable.
The judgment is notable for its recognition that participatory obligations are justiciable and enforceable. However, the court ultimately declined to invalidate the legislation, holding that the applicants had failed to meet a demanding evidentiary threshold.
This outcome raises an important constitutional question: “to what extent is participatory constitutionalism capable of meaningful enforcement where proof of systemic failure is required?”
Standing, mootness and the justiciability of participation
The court’s treatment of standing represents one of the most progressive aspects of the judgment.
It affirmed that section 141(a) creates a corresponding public entitlement, thereby allowing any member of the public to approach the court under section 167(2)(d) to enforce Parliament’s constitutional obligations.
This expansive approach reflects an appreciation of the Constitution’s transformative design. By recognising that participatory obligations are enforceable commitments rather than abstract directives, the Court strengthened the doctrinal foundation of participatory constitutionalism in Zimbabwe.
Equally significant is the court’s rejection of mootness. It held that challenges to legislative procedure remain justiciable even after enactment because they implicate the integrity of the law-making process itself. This approach aligns with comparative jurisprudence and affirms that constitutional compliance cannot be cured by formal legislative assent.
This is an important jurisprudential point in an environment where there are contested constitutional amendments taking place. Together, these aspects of the judgment reinforce the Court’s institutional role as a guardian of constitutional process and democratic accountability.
The evidentiary turn: From substance to proof
The central feature of the judgment, however, lies in its articulation of the evidentiary burden required to establish non-compliance with section 141(a) of the Constitution.
The court held that applicants must demonstrate either a complete failure to facilitate public participation or that participation was so inadequate as to be merely tokenistic. Crucially, the court insisted on a holistic assessment of the legislative process.
Isolated disruptions such as those alleged in Harare and Masvingo were deemed insufficient in the absence of evidence that the consultation process as a whole was defective. While this approach is doctrinally defensible, it has significant implications.
By framing the central issue as one of evidentiary sufficiency, the court shifted the constitutional inquiry away from the qualitative content of participation and toward the procedural obligations of litigants.
This shift may be understood as a form of judicial restraint. It allows the court to avoid invalidating legislation on the basis of isolated irregularities and preserves institutional comity between the judiciary and Parliament.
However, it also raises concerns that the substantive meaning of participation may be underdeveloped in the Court’s jurisprudence. This under development of an important jurisprudential issue operates to undermine the people’s right to democratic participation.
Burden of proof and the question of institutional responsibility
A key concern arising from the judgment is the allocation of the evidentiary burden.
The court required the applicants not only to demonstrate disruption at specific hearings, but also to account for the adequacy of participation across the broader legislative process nationally.
This raises a structural difficulty. In practice, much of the information necessary to demonstrate the overall effectiveness of public participation such as attendance records, alternative consultation mechanisms, and the quality of engagement lies within the custody and knowledge of Parliament itself.
There is therefore a persuasive argument that once applicants establish a prima facie case of disruption or exclusion, the evidentiary burden should shift to the respondent, in this Parliament, to demonstrate that the overall process remained constitutionally compliant.
The court’s decision not to adopt such an approach may have the unintended effect of placing an onerous burden on litigants, particularly in cases involving complex, multi-provincial consultation processes.
In the long run, it is the right of public participation that suffers.
A nation cannot effectively develop its democracy when public participation is not protected effectively by the courts. This then has a knock on effect on public accountability by duty bearers and holders of public office.
Comparative constitutional insights
Comparative jurisprudence offers useful guidance on the adjudication of participatory rights. In South Africa, the Constitutional Court in Doctors for Life International v Speaker of the National Assembly emphasised that the constitutional inquiry is whether Parliament took reasonable steps to facilitate meaningful public involvement.
The focus is not on proving systemic collapse, but on whether participation was substantively adequate.
In Kenya, courts have adopted an even more robust approach. Under Article 118 of the Constitution, public participation is a foundational requirement of legislative legitimacy. Kenyan courts have invalidated legislation where consultation processes were found to be perfunctory or exclusionary, emphasising that participation must be real, meaningful and inclusive.
In India, although participatory requirements are not explicitly codified in legislative processes, the Supreme Court has developed expansive doctrines of public interest litigation.
These allow litigants to challenge systemic governance failures without being constrained by rigid evidentiary thresholds. Against this comparative backdrop, the Zimbabwean approach appears distinctive.
While the court recognised broad standing, it adopted a more exacting evidentiary framework, placing greater emphasis on procedural proof than on the substantive quality of participation.
Implications for participatory democracy and civic space
The implications of the judgment extend beyond procedural doctrine to the broader question of democratic governance.
On one level, the decision strengthens constitutional oversight. It affirms that participatory obligations are enforceable and that citizens may invoke the Court’s jurisdiction to ensure compliance. However, the evidentiary framework articulated by the court may significantly affect the practical enforceability of participatory rights.
Civil society organisations and individual citizens may lack the resources required to gather comprehensive evidence across multiple consultation processes.
In this respect, the judgment may contribute to a model of formal compliance, in which the existence of consultation processes suffices to satisfy constitutional requirements, even where participation may have been ineffective and not meaningful in practice.
The risk is not doctrinal erosion, but operational constraint. Participatory rights may remain robust in principle yet limited in their capacity to influence legislative outcomes.
In the process, dangerous and repressive legislation may be enacted or progressive legislation protected under the Constitution may be eroded without judicial oversight on constitutional compliance in the law-making process.
Conclusion
The Constitutional Court’s decision in Fuza and Wakurawarehwa v Parliament of Zimbabwe illustrates the complex balance between constitutional ambition and judicial restraint.
The court affirmed key elements of participatory constitutionalism: broad standing, justiciability, and the enforceability of constitutional obligations.
These are significant doctrinal advances that reinforce the transformative vision of the 2013 Constitution. At the same time, the judgment reflects a cautious approach at the merits stage.
By emphasising evidentiary sufficiency and systemic failure, the court adopted a restrained posture that prioritises aggregate compliance over qualitative scrutiny.
This is the phenomenon that is being identified as constitutional avoidance or minimalism by critics of the Constitutional Court since its establishment in fulfilment of the national ambitions and vision as encapsulated in the 2013 Constitution.
This dual posture of being robust in principle, while conservative in application captures the enduring tension in constitutional adjudication. The challenge for future jurisprudence will be to ensure that participatory guarantees are not only recognised, but given substantive effect in practice. Only then can the 2013 Constitution become truly transformative.
Whether Zimbabwe’s constitutional framework evolves toward a more qualitative and context-sensitive understanding of participation will ultimately determine the extent to which participatory democracy serves as a genuine instrument of accountability, rather than a formal procedural requirement.
*Arnold Tsunga and Bongani Ngwenya are human rights lawyers who are members of Zimbabwe Lawyers for Human Rights.