Enforcement of protective provisions

10 | Application of Chapter 3

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)
  1. The fundamental human rights and freedoms enshrined in this Chapter must be respected and upheld by the executive, the legislature and the judiciary and all institutions and agencies of government at every level.
  2. Where applicable, the fundamental human rights and freedoms enshrined in this Chapter must be respected and upheld by all natural and juristic persons.
  3. Juristic persons as well as human beings are entitled to the rights and freedoms set out in this Chapter to the extent that those rights and freedoms can be appropriately extended to juristic persons.
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11 | Interpretation of Chapter 3

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)
  1. When interpreting this Chapter a court, tribunal, forum or body must—
    1. give full effect to the rights and freedoms set out in this Chapter;
    2. promote the values that underlie an open, just and democratic society based on human dignity, equality and freedom, and in particular, the principles and values set out in section 1;
    3. take into account international law and all treaties and conventions to which Zimbabwe is a party;  and
    4. consider relevant foreign law interpreting international law, treaties and conventions, in addition to considering all other relevant factors that are to be taken into account in the interpretation of an enactment such as a Constitution.
  2. When interpreting an enactment, and when developing the common law, every court, tribunal, forum or body must be guided by the spirit and objects of this Chapter.
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24 | Enforcement of protective provisions

Constitution of Zimbabwe (at 13th Feb, 2009)
  1. If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress. [Subsection as amended by section 9 of Act 15 of 1990 - Amendment No. 10]
  2. If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious. [Subsection as amended by section 9 of Act 15 of 1990 - Amendment No. 10]
  3. Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1). [Subsection as amended by section 13 of Act 25 of 1981 - Amendment No. 2]
  4. The Supreme Court shall have original jurisdiction—
    1. to hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and
    2. to determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights: Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of this Constitution or under any other law. [Subsection as amended by section 20 of Act 23 of 1987 and by section 9 of Act 15 of 1990 - Amendment No. 10]
  5. If in any proceedings it is alleged that anything contained in or done under the authority of any law is in contravention of section 16, 17, 19, 20, 21 or 22 and the court decides, as a result of hearing the parties, that the complainant has shown that the court should not accept that the provision of the law concerned is reasonably justifiable in a democratic society on such of the grounds mentioned in section 16(7), 17(2), 19(5), 20(2) and (4), 21(3) or 22(3)(a) to (e), as the case may be, as are relied upon by the other party without proof to its satisfaction, it shall issue a rule nisi calling upon the responsible Minister to show cause why that provision should not be declared to be in contravention of the section concerned.
  6. If in any proceedings it falls to be determined whether any law is in contravention of the Declaration of Rights, the Attorney-General shall be entitled to be heard by the court on that question and if in any such proceedings any law is determined by the court to be in contravention of the Declaration of Rights, then, whether or not he has exercised his right to be heard in those proceedings, the Attorney-General shall have the like right with respect to an appeal from that determination as if he had been a party to the proceedings.
  7. Where any law is held by a competent court to be in contravention of the Declaration of Rights, any person detained in custody under that law shall be entitled as of right to make an application to the Supreme Court for the purpose of questioning the validity of his further detention, notwithstanding that he may have previously appealed against his conviction or sentence or that any time prescribed for the lodging of such an appeal may have expired. [Subsection as amended by section 9 of Act 15 of 1990 - Amendment No. 10]
  8. A written law may confer upon the Supreme Court powers additional to those conferred by this section for the purpose of enabling the Supreme Court more effectively to exercise the jurisdiction conferred upon it by this section. [Subsection as amended by section 13 of Act 25 of 1981 - Amendment No. 2]
  9. A written law may make provision with respect to the practice and procedure—
    1. of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section; and
    2. of subordinate courts in relation to references to the Supreme Court under subsection (2); including provision with respect to the time within which any application or reference shall or may be made or brought. [Subsection as amended by section 13 of Act 25 of 1981 - Amendment No. 2]
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64 | Application to Constitutional Court for redress

Kariba Draft Constitution
  1. Anyone listed in subsection (2) may apply to the Constitutional Court for a remedy if they consider that a right or freedom set out in Part II has been, is being or is likely to be infringed.
  2. The persons who may make an application under subsection (1) are-
    1. anyone acting in their own interest;
    2. anyone acting in the interests or on behalf of human beings or juristic persons that cannot act in their own name;
    3. anyone acting as a member of, or in the interest of, a group or class of persons;
    4. an association acting in the interest of its members;
    5. anyone acting in the public interest.
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65 | Reference of question to Constitutional Court

Kariba Draft Constitution

If an issue arises in legal proceedings as to whether or not a right or freedom set out in Part II has been, is being or is likely to be infringed, the court hearing the proceedings–

  1. may decide the issue itself or, on its own initiative, refer the issue to the Constitutional Court for decision;
  2. must refer the issue to the Constitutional Court for decision if requested to do so by any party to the proceedings, unless the court considers the raising of the issue to be frivolous or vexatious.
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66 | Jurisdiction of Constitutional Court

Kariba Draft Constitution
  1. The Constitutional Court has power to decide any issue arising on an application or reference to it under this Part and to make whatever orders and give whatever directions the court considers appropriate in order to enforce the right or freedom at issue.
  2. The Constitutional Court may decline to exercise its powers under subsection (1) if it considers that the person whose right or freedom is alleged to have been infringed has adequate means of redress under another provision of this Constitution or under another law.
  3. In addition to any other powers it may have, the Constitutional Court may dismiss an application or reference without hearing the parties if the court considers that the application or reference is frivolous or vexatious, but if it does so it must provide the parties with its reasons.
  4. A written law may-
    1. confer additional powers on the Constitutional Court;
    2. provide for the practice and procedure of the Constitutional Court and other courts in applications and references under this Part;
    3. fix reasonable time-limits within which applications may be brought to the Constitutional Court.
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67 | Jurisdiction of all courts in constitutional matters

Kariba Draft Constitution
  1. This Part does not limit the power of any court to decide, under its ordinary jurisdiction, whether or not a right or freedom set out in Part II has been, is being or is likely to be infringed.
  2. Where a court declares that a law or administrative act is invalid on the ground that it infringes or is likely to infringe a right or freedom set out in Part II, the court may make either or both the following orders
    1. limiting the retrospective effect of the declaration of invalidity; or
    2. suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect; if the court considers it just and equitable to do so.
  3. Where a court, other than the Constitutional Court, has declared that a law or administrative act is invalid on the ground that it infringes or is likely to infringe a right or freedom set out in Part II, any person with sufficient interest may appeal to the Constitutional Court to confirm or vary the declaration or any order made in connection with the declaration.
  4. A written law may fix reasonable time-limits within which appeals must be made to the Constitutional Court under subsection (3).
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68 | Right of Attorney-General to be heard in constitutional cases

Kariba Draft Constitution
  1. If an issue arises in legal proceedings as to whether or not a law infringes a right or freedom set out in Part II, the Attorney-General is entitled to–
    1. be heard by the court on that issue; and
    2. appeal to the Constitutional Court against the decision, if the court decides that the law or action does infringe a right or freedom set out in Part II.
  2. The Attorney-General may exercise his or her right of appeal under subsection (1)(b) even if he or she did not appear in the proceedings concerned.
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69 | Right of Minister to make representations in certain constitutional cases

Kariba Draft Constitution

A court must not decide that a law infringes a right or freedom set out in Part II on the ground that the law is not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom, unless the court has given the Minister responsible for that law a reasonable opportunity to make representations on the issue.

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70 | Right of persons detained under law declared unconstitutional

Kariba Draft Constitution

If a competent court has declared that a law infringes a right or freedom set out in Part II, anyone detained by virtue of that law may apply as of right to the Constitutional Court for a decision on whether or not their continued detention is valid, and they may make such an application whether or not they are entitled to appeal against their detention under any other law.

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13 | Enforcement of rights

Law Society of Zimbabwe: Model Constitution of Zimbabwe (2010)
  1. Any of the following persons, namely—
    1. anyone acting in their own interests;
    2. anyone acting on behalf of another person who cannot act for themselves;
    3. anyone acting as a member, or in the interests, of a group or class of persons;
    4. anyone acting in the public interest;
    5. any association acting in the interests  of its members;

      is entitled to approach a competent court, alleging that a fundamental right or freedom enshrined in this Chapter has been infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.
  2. Anyone referred to in subsection (1) is also entitled to make an application to an Independent Commission for appropriate redress for a violation of any fundamental right or freedom enshrined in this Chapter, and the Commission may grant appropriate relief in accordance with an Act of Parliament.
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12 | Enforcement of rights

National Constitutional Assembly (NCA) Draft Constitution (2001)
  1. Anyone listed in subsection (2) is entitled to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights and award of compensation.
  2. The persons who may approach a court are:-
    1. anyone acting in their own interest;
    2. anyone acting on behalf of another person who cannot act in their own name;
    3. anyone acting as a member, or in the interests, of a group or class of persons;
    4. anyone acting in the public interest;
    5. an association acting in the interest of its members.
  3. The persons referred to in subsection (1) and (2) of this section are also entitled to make an application to the Human Rights Commission for an appropriate redress for violations of the rights and freedoms contained in the Bill of Rights.
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