Constitution

Zimbabwe 2013 Constitution (reviewed 2017)

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Table of Contents

CHAPTER 8. THE JUDICIARY AND THE COURTS

PART 1. THE COURT SYSTEM

162. Judicial authority

Judicial authority derives from the people of Zimbabwe and is vested in the courts, which comprise–

  1. the Constitutional Court;
  2. the Supreme Court;
  3. the High Court;
  4. the Labour Court;
  5. the Administrative Court;
  6. the magistrates courts;
  7. the customary law courts; and
  8. other courts established by or under an Act of Parliament.

163. The judiciary

  1. The judiciary of Zimbabwe consists of–
    1. the Chief Justice, the Deputy Chief Justice and the other judges of the Constitutional Court;
    2. the judges of the Supreme Court;
    3. the Judge President of the High Court and the other judges of that court;
    4. the Judge President of the Labour Court and the other judges of that court;
    5. the Judge President of the Administrative Court and the other judges of that court; and
    6. persons presiding over magistrates courts, customary law courts and other courts established by or under an Act of Parliament.
  2. The Chief Justice is head of the judiciary and is in charge of the Constitutional Court and the Supreme Court.
  3. The Judge President of the High Court is in charge of that court.
  4. The Judge President of the Labour Court is in charge of that court.
  5. The Judge President of the Administrative Court is in charge of that court.

164. Independence of judiciary

  1. The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.
  2. The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore–
    1. neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;
    2. the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principles set out in section 165.
  3. An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them.
  4. Nothing in this section is to be construed as preventing an Act of Parliament from vesting functions other than adjudicating functions in a member of the judiciary, provided that the exercise of those functions does not compromise the independence of the judicial officer concerned in the performance of his or her judicial functions and does not compromise the independence of the judiciary in general.

165. Principles guiding judiciary

  1. In exercising judicial authority, members of the judiciary must be guided by the following principles–
    1. justice must be done to all, irrespective of status;
    2. justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness;
    3. the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law.
  2. Members of the judiciary, individually and collectively, must respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system.
  3. When making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence.
  4. Members of the judiciary must not–
    1. engage in any political activities;
    2. hold office in or be members of any political organisation;
    3. solicit funds for or contribute towards any political organisation; or
    4. attend political meetings.
  5. Members of the judiciary must not solicit or accept any gift, bequest, loan or favour that may influence their judicial conduct or give the appearance of judicial impropriety.
  6. Members of the judiciary must give their judicial duties precedence over all other activities, and must not engage in any activities which interfere with or compromise their judicial duties.
  7. Members of the judiciary must take reasonable steps to maintain and enhance their professional knowledge, skills and personal qualities, and in particular must keep themselves abreast of developments in domestic and international law.

166. Constitutional Court

  1. The Constitutional Court is a superior court of record and consists of–
    1. the Chief Justice and the Deputy Chief Justice; and
    2. five other judges of the Constitutional Court;
  2. If the services of an acting judge are required on the Constitutional Court for a limited period, the Chief Justice may appoint a judge or a former judge to act as a judge of the Constitutional Court for that period.
  3. Cases before the Constitutional Court–
    1. concerning alleged infringements of a fundamental human right or freedom enshrined in Chapter 4, or concerning the election of a President or Vice-President, must be heard by all the judges of the Court;
    2. other than cases referred to in paragraph (a), must be heard by at least three judges of the Court;

    but an Act of Parliament or rules of the Court may provide for interlocutory matters to be heard by one or more judges of the Court.

  4. Judges or former judges appointed to act under subsection (2) may continue to sit as judges of the Constitutional Court after their appointments have expired, for the purpose of dealing with any proceedings commenced before them while they were so acting.

167. Jurisdiction of Constitutional Court

  1. The Constitutional Court–
    1. is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;
    2. decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule; and
    3. makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.
  2. Subject to this Constitution, only the Constitutional Court may–
    1. advise on the constitutionality of any proposed legislation, but may do so only where the legislation concerned has been referred to it in terms of this Constitution;
    2. hear and determine disputes relating to election to the office of President;
    3. hear and determine disputes relating to whether or not a person is qualified to hold the office of Vice-President; or
    4. determine whether Parliament or the President has failed to fulfil a constitutional obligation.
  3. The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and must confirm any order of constitutional invalidity made by another court before that order has any force.
  4. An Act of Parliament may provide for the exercise of jurisdiction by the Constitutional Court and for that purpose may confer the power to make rules of court.
  5. Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court–
    1. to bring a constitutional matter directly to the Constitutional Court;
    2. to appeal directly to the Constitutional Court from any other court;
    3. to appear as a friend of the court.

168. Supreme Court

  1. The Supreme Court is a superior court of record and consists of–
    1. the Chief Justice and the Deputy Chief Justice;
    2. no fewer than two other judges of the Supreme Court; and
    3. any additional judges appointed under subsection (2).
  2. If the services of an additional judge are required on the Supreme Court for a limited period, the Chief Justice may appoint a judge of the High Court, or a former judge to act as a judge of the Supreme Court for that period.
  3. Judges or former judges appointed to act under subsection (2) may continue to sit as judges of the Supreme Court after their appointments have expired, for the purpose of dealing with any proceedings commenced before them while they were so acting.

169. Jurisdiction of Supreme Court

  1. The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.
  2. Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.
  3. An Act of Parliament may provide for the exercise of jurisdiction by the Supreme Court and for that purpose may confer the power to make rules of court.
  4. Rules of court may confer on a registrar of the Supreme Court any of the Court’s jurisdiction and powers in civil cases–
    1. to make orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;
    2. to decide preliminary or interlocutory matters, including applications for directions, but not matters affecting the liberty of any person;

    but the rules must give any person affected by the registrar’s order or decision a right to have it reviewed by a judge of the Supreme Court, who may confirm it, amend it or set it aside or give any other order or decision he or she thinks fit.

170. High Court

The High Court is a superior court of record and consists of–

  1. the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court; and
  2. such other judges of the High Court as may be appointed from time to time.

171. Jurisdiction of High Court

  1. The High Court–
    1. has original jurisdiction over all civil and criminal matters throughout Zimbabwe;
    2. has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;
    3. may decide constitutional matters except those that only the Constitutional Court may decide; and
    4. has such appellate jurisdiction as may be conferred on it by an Act of Parliament.
  2. An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.
  3. An Act of Parliament may provide for the High Court to be divided into specialised divisions, but every such division must be able to exercise the general jurisdiction of the High Court in any matter that is brought before it.
  4. Rules of court may confer on a registrar of the High Court power in civil cases–
    1. to make orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;
    2. to decide preliminary or interlocutory matters, including applications for directions, but not matters affecting the liberty of any person;

    but the rules must give any person affected by the registrar’s order or decision a right to have it reviewed by a judge of the High Court, who may confirm it, amend it or set it aside or give any other order or decision he or she thinks fit.

172. Labour Court

  1. The Labour Court is a court of record and consists of–
    1. a senior judge; and
    2. such other judges of the Labour Court as may be appointed from time to time.
  2. The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.
  3. An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.

173. Administrative Court

  1. The Administrative Court is a court of record and consists of–
    1. a senior judge; and
    2. such other judges of the Administrative Court as may be appointed from time to time.
  2. The Administrative Court has such jurisdiction over administrative matters as may be conferred upon it by an Act of Parliament.
  3. An Act of Parliament may provide for the exercise of jurisdiction by the Administrative Court and for that purpose may confer the power to make rules of court.

174. Other courts and tribunals

  1. An Act of Parliament may provide for the establishment, composition and jurisdiction of–
    1. magistrates courts, to adjudicate on civil and criminal cases;
    2. customary law courts whose jurisdiction consists primarily in the application of customary law;
    3. other courts subordinate to the High Court; and
    4. tribunals for arbitration, mediation and other forms of alternative dispute resolution.
  2. For the purpose of this section and section 171(1)(b), it is declared, for the avoidance of doubt, that the Labour Court and Administrative Court are courts subordinate to the High Court.

175. Powers of courts in constitutional matters

  1. Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.
  2. A court which makes an order of constitutional invalidity referred to in subsection (1) may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of the law or conduct concerned.
  3. Any person with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).
  4. If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.
  5. An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.
  6. When deciding a constitutional matter within its jurisdiction a court may–
    1. declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;
    2. make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending conditionally or unconditionally the declaration of invalidity for any period to allow the competent authority to correct the defect.

176. Inherent powers of Constitutional Court, Supreme Court and High Court

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.

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PART 2. APPOINTMENT AND TENURE OF MEMBERS OF JUDICIARY

177. Qualifications of judges of Constitutional Court

  1. A person is qualified for appointment as a judge of the Constitutional Court if he or she is a Zimbabwean citizen, is at least forty years old and has a sound knowledge of constitutional law and, in addition, possesses one of the following qualifications–
    1. he or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English, and English is an officially recognised language; or
    2. for at least twelve years, whether continuously or not, he or she has been qualified to practise as a legal practitioner–
      1. in Zimbabwe; or
      2. in a country in which the common law is Roman-Dutch or English and English is an officially recognised language;

      and is currently so qualified to practise.

      183. Judicial officers not to be appointed to more than one court

      Except as otherwise provided in this Constitution, a person must not be appointed as a judicial officer of more than one court.

      184. Judicial appointments to reflect society

      Appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe.

  2. To be appointed as a judge of the Constitutional Court a person must be a fit and proper person to hold office as a judge.

178. Qualifications of judges of Supreme Court

  1. A person is qualified for appointment as a judge of the Supreme Court if he or she is a Zimbabwean citizen and at least forty years old and, in addition–
    1. is or has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; or
    2. for at least ten years, whether continuously or not, he or she has been qualified to practise as a legal practitioner–
      1. in Zimbabwe; or
      2. in a country in which the common law is Roman-Dutch or English and English is an officially recognised language;

      and is currently so qualified to practise.

  2. To be appointed as a judge of the Supreme Court a person must be a fit and proper person to hold office as a judge.

179. Qualifications of judges of High Court, Labour Court and Administrative Court

  1. A person is qualified for appointment as a judge of the High Court, the Labour Court or the Administrative Court if he or she is at least forty years old and, in addition–
    1. is or has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; or
    2. for at least seven years, whether continuously or not, he or she has been qualified to practise as a legal practitioner–
      1. in Zimbabwe;
      2. in a country in which the common law is Roman-Dutch and English is an officially recognised language; or
      3. if he or she is a Zimbabwean citizen, in a country in which the common law is English and English is an officially recognised language;

      and is currently so qualified to practise.

  2. To be appointed as a judge of the High Court, the Labour Court or the Administrative Court a person must be a fit and proper person to hold office as a judge.

180. Appointment of judges

  1. The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.
  2. The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.
  3. If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Comnnission in terms of subsection (2), the President shalt cause the Senate to be informed as soon as is practicable:
  4. Whenever it is necessary to appoint a judge other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must-
    1. advertise the position; and
    2. invite the President and the public to make nondnations; and
    3. conduct public interviews of prospective candidates; and
    4. prepare a list of three qualified persons as nominees for the office; and
    5. submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.
  5. If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commissionto submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.
  6. The President must cause notice of every appointment under this section to be published in the Gazette.
  7. The offices of senior judge of the Labour Court and senior judge of the Adrninistrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concemed, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.

181. Acting judicial appointments

  1. If the office of Chief Justice is vacant or if the office-holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are vacant or both office-holders are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice.
  2. If the office of–
    1. Judge President of the High Court;
    2. senior judge of the Labour Court; or
    3. senior judge of the Administrative Court;

    is vacant or if the office-holder is unable to perform the functions of that office, the next most senior judge of the court concerned acts as Judge President.

  3. If the services of an additional judge of the High Court, the Labour Court or the Administrative Court are required for a limited period the President, acting on the advice of the Judicial Service Commission, may appoint a former judge to act in that office for not more than twelve months, which period may be renewed for one further period of twelve months.
  4. Persons appointed to act under subsection (3) may continue to sit as judges after their appointments have expired, for the purpose of dealing with any proceedings commenced before them while they were so acting.

182. Appointment of magistrates and other members of judiciary

An Act of Parliament must provide for the appointment of magistrates and other judicial officers other than judges, but–

  1. magistrates must be appointed by the Judicial Service Commission;
  2. judicial officers other than magistrates or judges must be appointed with the approval of the Judicial Service Commission;
  3. all such appointments must be made transparently and without fear, favour, prejudice or bias.

185. Oath of office

  1. Before the Chief Justice or Deputy Chief Justice assumes office, he or she must take, before the President or a person authorised by the President, the judicial oath in the form set out in the Third Schedule.
  2. Before a judge, other than the Chief Justice or Deputy Chief Justice, assumes office, he or she must take, before the Chief Justice or the next most senior judge available, the judicial oath in the form set out in the Third Schedule.
  3. The Acts of Parliament under which magistrates and other members of the judiciary, other than judges, are appointed must prescribe the oath to be taken by those members of the judiciary.

186. Tenure of office of judges

  1. Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years, but–
    1. they must retire earlier if they reach the age of seventy years; and
    2. after the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.
  2. Judges of the Supreme Court and the High Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire.
  3. A person may be appointed as a judge of the Supreme Court or the High Court for a fixed term, but if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of seventy years even if the term of his or her appointment has not expired;
  4. Even though a judge has resigned or reached the age of seventy years or, in the case of a judge of the Constitutional Court or a judge referred to in subsection (3), reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.
  5. A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission.
  6. The office of a judge must not be abolished during his or her tenure of office.

187. Removal of judges from office

  1. A judge may be removed from office only for–
    1. inability to perform the functions of his or her office, due to mental or physical incapacity;
    2. gross incompetence; or
    3. gross misconduct;

    and a judge cannot be removed from office except in accordance with this section.

  2. If the President considers that the question of removing the Chief Justice from office ought to be investigated, the President must appoint a tribunal to inquire into the matter.
  3. If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter.
  4. A tribunal appointed under this section must consist of at least three members appointed by the President, of whom–
    1. at least one must be a person who–
      1. has served as a judge of the Supreme Court or High Court in Zimbabwe; or
      2. holds or has held office as a judge of a court with unlimited jurisdiction in civil or criminal matters in a country whose common law is Roman-Dutch or English, and English is an officially recognised language;
    2. at least one must be chosen from a list of three or more legal practitioners of seven years’ standing or more who have been nominated by the association, constituted under an Act of Parliament, which represents legal practitioners in Zimbabwe.
  5. The association referred to in subsection (4)(b) must prepare the list referred to in that subsection when so required by the President.
  6. The President must designate one of the members of a tribunal appointed under this section to be chairperson of the tribunal.
  7. A tribunal appointed under subsection (2) or (3) must inquire into the question of removing the judge concerned from office and, having done so, must report its findings to the President and recommend whether or not the judge should be removed from office.
  8. The President must act in accordance with the tribunal’s recommendation in terms of subsection (7).
  9. A tribunal appointed under this section has the same rights and powers as commissioners under the Commissions of Inquiry Act [Chapter 10:07], or any law that replaces that Act.
  10. If the question of removing a judge from office has been referred to a tribunal under this section, the judge is suspended from office until the President, on the recommendation of the tribunal, revokes the suspension or removes the judge from office.
  11. An Act of Parliament may empower the Judicial Service Commission or a tribunal appointed under this section to require any judge to submit to a medical examination by a medical board established for that purpose, in order to ascertain his or her physical or mental health.

188. Conditions of service and tenure of members of judiciary

  1. Judges are entitled to the salaries, allowances and other benefits fixed from time to time by the Judicial Service Commission with the approval of the President given after consultation with the Minister responsible for justice and on the recommendation of the Minister responsible for finance.
  2. An Act of Parliament must provide for the conditions of service of judicial officers other than judges and must ensure that their promotion, transfer and dismissal, and any disciplinary steps taken against them, take place–
    1. with the approval of the Judicial Service Commission; and
    2. in a fair and transparent manner and without fear, favour or prejudice.
  3. The salaries, allowances and other benefits of members of the judiciary are a charge on the Consolidated Revenue Fund.
  4. The salaries, allowances and other benefits of members of the judiciary must not be reduced while they hold or act in the office concerned.

PART 3. JUDICIAL SERVICE COMMISSION

189. Establishment and composition of Judicial Service Commission

  1. There is a Judicial Service Commission consisting of–
    1. the Chief Justice;
    2. the Deputy Chief Justice;
    3. the Judge President of the High Court;
    4. one judge nominated by the judges of the Constitutional Court, the Supreme Court, the High Court, the Labour Court and the Administrative Court;
    5. the Attorney-General;
    6. the chief magistrate;
    7. the chairperson of the Civil Service Commission;
    8. three practising legal practitioners of at least seven years’ experience designated by the association, constituted under an Act of Parliament, which represents legal practitioners in Zimbabwe;
    9. one professor or senior lecturer of law designated by an association representing the majority of the teachers of law at Zimbabwean universities or, in the absence of such an association, appointed by the President;
    10. one person who for at least seven years has practised in Zimbabwe as a public accountant or auditor, and who is designated by an association, constituted under an Act of Parliament, which represents such persons; and
    11. one person with at least seven years’ experience in human resources management, appointed by the President.
  2. The Chief Justice or, in his or her absence, the Deputy Chief Justice presides at meetings of the Judicial Service Commission, and in the absence of both of them at any meeting the members present elect one of their number to preside at the meeting.
  3. The members of the Judicial Service Commission referred to in paragraphs (d), (h), (i), (j) and (k) of subsection (1) are appointed for one non-renewable term of six years.

190. Functions of Judicial Service Commission

  1. The Judicial Service Commission may tender advice to the Government on any matter relating to the judiciary or the administration of justice, and the Government must pay due regard to any such advice.
  2. The Judicial Service Commission must promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice in Zimbabwe, and has all the powers needed for this purpose.
  3. The Judicial Service Commission, with the approval of the Minister responsible for justice, may make regulations for any purpose set out in this section.
  4. An Act of Parliament may confer on the Judicial Service Commission functions in connection with the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts.

191. Fairness and transparency of proceedings of Judicial Service Commission

The Judicial Service Commission must conduct its business in a just, fair and transparent manner.

PART 4. GENERAL

192. Law to be administered

The law to be administered by the courts of Zimbabwe is the law that was in force on the effective date, as subsequently modified.

193. Criminal jurisdiction of courts

Only the following courts may exercise or be given jurisdiction in criminal cases–

  1. the Constitutional Court, the Supreme Court, the High Court and magistrates courts;
  2. a court or tribunal that deals with cases under a disciplinary law, to the extent that the jurisdiction is necessary for the enforcement of discipline in the disciplined force concerned.

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