The Sunday Mail
Ephraim Ndlovu
Ever since the current Constitution came into being in 2013, there has been a lot of reference to a certain process touted “alignment of laws with the Constitution”.
This presupposes that when the new Constitution was signed into law, any other laws or sections of laws that were no longer in conformity with that Constitution became invalid as they fell out of line or were no longer “aligned” to the Constitution.
In this article, I wish to bring to the fore the falsity or fallacy of the use of the word “alignment” at least in as far as it is being used to refer to those laws or sections of the laws that became unconstitutional at the birth of the current Constitution.
From where I sit, there is a deceptive impression that has been created whose effect is that the new Constitution will only substantively come into effect upon the completion of the so-called “alignment process”.
It has been said that the said alignment process is the one that will eventually validate the new Constitution.
The other interpretation that is connected to this mistaken view is the conceptualisation of the process of “deletion” and “promulgation” as a process of “alignment”.
I intend to show that the processes of deletion and promulgation are not “alignment”.
During the constitution-making process, I noted that a whole lot of effort was spent on the mere pronunciation of the word “COPAC” and its subsidiary committees with often high-sounding labels like the so-called “thematic committees”.
Many lost sight of the most important issue which was the need to “read” the drafts and subsequent document which was finally adopted as the Constitution of the Republic through the Constitution of Zimbabwe Amendment (No.20) Act 2013.
The result of the over specialisation on superlatives and high sounding names is that today, many feel great loss when they read the Constitution.
The general public and even some legally trained minds know a lot about the much talked about “COPAC” than they can explain as for example, the Presidential running mates concept introduced by the Constitution in terms of Section 92 (2) of the Constitution as read with part 4 thereof.
It is my contention that the same unfortunate lack of attention to detail is now unfolding and this time it relates to the so-called “alignment process”.
The well-known concept of the hierarchy of laws is properly captured in Section 2(1) of the Constitution which says: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency”.
The Constitution by the above section, is the mother of all laws and all the other laws must be in conformity with it. The constitutional and legislative history of the Republic created a situation in which at adoption of the new constitution, a great many aspects of almost all Acts became “instantly” void for lack of consistency with the supreme law.
I have used the word “instantly” to show that the nullity of such Acts or sections within Acts was achieved the very moment the new Constitution was adopted as the supreme law. For example, in terms of the old law, with regards to issues such as bail, the Criminal Procedure and Evidence Act (Chapter 9:07) provided for an accused to be admitted to bail upon making an application to the court in terms of the then Section 117 A(1) of that Act.
The adoption of the new Constitution altered this position and instantly rendered void that particular provision by making bail a constitutional right in terms of Section 50(1) (d).
Accordingly, Section 117A of the Criminal Procedure & Evidence Act became void in that what it provided for became an entitlement to the extent that one need not discharge the onus to show that they are a good candidate for bail.
They already are by virtue of a constitutional prescription. The onus now lies on the prosecution to show that an accused person is not a good candidate for bail.
It is, therefore, now critical to state that the said Section 117A together with many other sections of various other Acts that are now inconsistent with the new Constitution became void at the instant when the new Constitution became law.
It is my view that it is fallacious to talk of alignment is this situation. When an Act is rendered void for inconsistency with the Constitution, it becomes a nullity or put in another way, it becomes nothing.
At law, it is no longer there and its provisions are not binding anymore. It is futile to seek to align something which is already nothing. In as far as it relates to such situations, the only other process that the Government draftsmen should do is to delete them legally from the statute books.
One does not die through the issuance of a death certificate but the very moment they gasp the last. As such, there is only a deletion of those sections of laws that have become nothing by virtue of the new Constitution.
The term “alignment” as used to refer to the process of deleting the various now invalid laws and sections of laws is misleading because it gives the false impression that the laws being cancelled or panel beaten are all law when they are not. They are nothing.
The second scenario which obtains is as follows. The new Constitution created new institutions which, as we speak, are not yet fully functional in that the legislative framework which must guide them has not been promulgated.
In the same situation, some of the rights contained in the Constitution have specific clauses in which it is prescriptive that an Act of Parliament must be promulgated to facilitate their enjoyment.
For instance, the fundamental right to life contained in Section 48 (3) provides that:
“An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law”.
Also, Section 209(1) of the Constitution introduces a body that is called the National Security Council. In Section 210, it provides for an Act of Parliament that must be provided to guide activities of that council.
Now, the point I make is that first, it is the Constitution which provides for the promulgation of such laws. At law, it will be correct to state that the promulgation and adoption of such prescribed Acts of Parliament is on the face of it, constitutional because they are promulgated pursuant to a constitutional mandate.
It is, therefore, clear that at this very first huddle, it would be erroneous to refer to such a process as “alignment” because this involves the creation of new laws altogether.
These Acts will not align to the Constitution when made, they actually will be built upon the Constitution. In simple language, they are like children of the Constitution. When a child is born, it is not an alignment of its parents. It will be a product of its parents.
It is my view that it is erroneous to look at this process as a process of alignment of laws because it is not. It is a formulation of delegated law in terms of the Constitution.
In any case, the so-called alignment process in this scenario is an internal process firstly involving the draftsmen, Parliamentary legal committees and the Attorney General in his legal role of advising Government on legal issues.
It is not the promulgation and adoption of Acts of Parliament that are prescribed by the Constitution in its various sections. It is, therefore, my considered view that promulgation of laws should not be confused with alignment of laws.
Having shown that the so-called alignment process is actually a process of deletion and promulgation, I now turn to the third aspect of this article.
It is imperative to note that except for those provisions of the Constitution that are on suspension like Section 92(2) which is held in abeyance for 10 years, Section 14(1) of Part 4 of the Constitution, others became operational the day the new Constitution came into operation. The Bill of Rights which I consider sacred, is in operation.
Members of the public especially through their lawyers must use every available avenue to enjoy, assert and ensure perpetual realisation of such rights. Section 50(2)(b) is very clear that upon arrest, one must be brought before a court of law within 48 hours. This is the law. It does not need to be “aligned” to be valid because it is already given.
In instances where the Constitution mandates that particular delegated legislation must be promulgated, people need to use both political and legal methods to ensure compliance with the Constitution. I mean “political” not to denote violence, rather the exercise of lobbying the executive arm of Government to expedite this process of promulgation.
In conclusion, it is my well considered view that the whole “alignment” issue is a fictional creation within our body politic and law because logically thinking, such a process does not exist. There are no inconsistences that need to be “aligned”.
Continued occurrences of unconstitutional acts does not denote a variance of law, but unconstitutionalism which vice cannot be cured by the so-called “alignment”.
While I seek to assert what the Constitution has already given to me, I do not worry about the “deletion” process. Instead, I hope that the “deletion and promulgation” process will be expedited.
Ephraim Ndlovu is a legal practitioner who writes in his personal capacity. For feedback: [email protected]
