[4th December 2024]
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.
