Zimbabwe had previously faced challenges in public administration some of which were attributed to a flawed Constitution. Whilst acknowledging the point that the practice of public administration is not entirely dependent on the Constitution, as other factors such as the human element, culture and availability of resource, it must be stressed that the Constitution provides a base on which public officials carry out their duties.
The introduction of a section that deals with values and principles on public administration will go a long way in ushering a new era in this critical field.
Equally important is the inclusion of the local government sphere which has been omitted in the previous Constitution hereafter referred to as Constitution of Zimbabwe The paper argues that from a public administration perspective, the new Constitution hereafter referred to as Constitution of Zimbabwe will significantly change the face and practice of the field in Zimbabwe.
The paper which is based on literature review is largely descriptive and analytical in nature. A summation of key issues is captured in the concluding remarks. Public administration defined According to Zhou public administration is the hub of every government because it is the central institutional machinery through which national socioeconomic growth and development is facilitated.
Moyo and Nhede stress the difficulty that is commonly encountered in attempting to define public administration. Du Toit, Knipe, van Niekerk, van der Waldt, and Doyle define public administration as the administrative process that must be carried out together with other actions undertaken by government institutions and public officials. In addition, Du Toit et al reckon that public administration only refers to actions and processes executed by government executive institutions, thus in their view excluding legislative processes as well as the procedures executed by courts of law.
Furthermore a distinction is made between public administration as an academic discipline and as activity. As an academic discipline, Public Administration is denoted by capital letters at the beginning of each the two words, as an activity public administration is denoted by small letters at the beginning of the words.
Public administration needs to be understood in terms of how government adapts in dealing with problems that the people are facing. In addition, public administration in a country is shaped by the overall political system of that country, for example the practice public administration in a democratic country will be different from a country that is under a monarchy.
Spicer whilst acknowledging the relationship between the two argues that public administration and the constitution are premised on conflicting world views. It is the understanding of the above that makes control of human affairs possible. It can therefore inferred that rationalists down play the importance of the constitution in the running of public affairs. The anti-rationalist view sees the world, in particular, human affairs as too complex and unpredictable for one mind no matter how wise.
Furthermore, it views human behaviour as driven by passions and selfish interests and conflict rather than cooperation is common in human affairs. Cognisant of the flawed nature of human beings who serve in government, there is need for laws and principles that restrain both individuals who serve in government and government in dealing with the people.
Anti-rationalists therefore give prominence to the importance of the constitution in public administration. This paper is written from an anti- rationalist perspective where the role of the constitution in public administration is given prominence. Whilst the human ability to reason and work for the common good is a possibility, for consistency and predictability, it is important to have laid down rules and principles that should guide the conduct of both public administrators and government.
Although public officials have the leeway to use reason in order to advance public interest, these discretionary powers need to be within the precincts of the Constitution. It is therefore important for Public Administration scholars to have a full appreciation of the impact that the new Constitution that has been adopted in Zimbabwe has on the field of public administration, both as a practice and its study. Limitations of the Constitution: A public administration view The Constitution of Zimbabwe has provided the basis for public administration since the attainment of independence in The Constitution of Zimbabwe provided for the three arms of the state, with provision for checks and balances as propounded by Charles Louis de Secondat and Baron de Montesquieeue in the treis politika doctrine.
In their argument as captured by Botes et al state power should be shared by the three arms of the state namely executive, legislature and judiciary. Thought acknowledging the three arms of the state, the Constitution of Zimbabwe is sharply criticised for concentrating too much powers in the executive leaving the legislature as a largely ceremonial institution.
The Constitution of Zimbabwe also provided for rights to the people; however these were criticised for being limited in their scope. The Constitution of Zimbabwe did not have a section that clearly deals with values and principles that guides public administration.
It only mentioned that the country should have a civil service that must staff various public institutions without necessarily outlining the values and principles that these public officials and institutions need to adhere to. Another critical omission by the Constitution of Zimbabwe is that of local government.
Furthermore the theory holds that justice of social schemes depend essentially on how fundamental rights and duties are assigned. The United Nations Convention on the rights of the child CRC was used to make an analysis on the best interests of the child concept.
This concept is captured by article 3 of the convention and holds out that in all matters involving a child, the best interests of the child are of paramount importance. The United Nations Convention on the elimination of all forms of discrimination against women CEDAW was looked at in determining the legal status of women in terms of their recognition in the Constitution and in intestate succession laws.
Article 2 of the convention was mainly analysed as it dealt with the need to place women on an equal footing with men at law.
Article 10 of the United Nations International convention on economic, social and cultural rights ICESCR was looked at when discussing the need to protect the dependants of the deceased person out of their estate.
Having looked at the review of the various academic materials used in the dissertation, the next chapter will indicate the methodology used in the dissertation. The methods include theoretical perspectives, research instruments and data collection methods. It concludes with showing the challenges and constraints in coming up with the dissertation as well as its delimitation. Furthermore section 3 of the Customary law and local courts Act [Chapter ] reflects the theory in the choice of law process that is conferred therein.
The choice of law process speaks to the effect that either general law or customary law applies to a particular case depending on the factors listed in the provision.
The rest of the Act deals with administration of estates under general law. It is therefore important to reconcile the 18 John Griffiths, What is legal pluralism? In particular one would want to understand if we still have a plural system under the current intestate succession framework. James Nickel writes that, The philosophy of human rights addresses questions about the existence, content, nature, universality, justification, and legal status of human rights.
The strong claims made on behalf of human rights for example, that they are universal, or that they exist independently of legal enactment as justified moral norms frequently provoke 22 sceptical doubts and countering philosophical defences. The human rights approach will facilitate for a comprehensive study of the relationship between human rights and the laws of intestate succession.
The p i iples of justi e a e hose ehi d a eil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social i u sta es.
John Rawls in his justice theory seeks to elevate equity, fairness and morality as the important norms in any legal situation. Various Zimbabwean statutes, case law, international instruments conventions and treaties , South African legislation, authoritative literature academic articles and published texts were read and analysed.
This was in an attempt to find out the key relationship between intestate succession laws and the bill of rights. The Zimbabwean legislation provided the provisions and the law that are affected by the bill of rights. The case law provided the decisions of the courts and how they establish a connection with upholding fundamental human rights or lack thereof.
International instruments were analysed to give the researcher insight on the more favoured global approach to fundamental human rights being realised in the various areas of law. The relevant legislative framework in South Africa was analysed to give a comparative analysis of how South Africa as a State has applied itself to the relationship between its Constitutional bill of Rights and its intestate succession laws.
Firstly time was insufficient to gather all the data that would be relevant for this dissertation. The need to come up with this work within a schedule that also incorporates other courses made the esea he s ti e li ited.
The u a aila ilit of lite atu e to the spe ific topic under research as it is fairly novel was also a constraint to the researcher. Access to internet was very restricted at the University of Zimbabwe, with the network particularly crowded by other students.
This made the search for articles online and other key definitions difficult and cumbersome. Researching for recent case law was difficult as there is no established forum that specifically discusses human rights and the laws of intestate succession. The conclusion of the chapter on the methodology sees the dissertation discussing the substantive elements of the dissertation topic in the next chapter.
The points as stated below are: 1. When a person dies without leaving a will 2. When a person leaves a will that is invalid and therefore void and unenforceable 3. When a person leaves a valid will but omits to dispose of the whole of his estate resulting in partial intestacy 4.
When certain conditions made in a valid will are not fulfilled and there are no provisions that have been made for substituting the benefit or accrual24 An intestate succession framework on the other hand is the combination of both the rules and principles of the body of law as understood from the interaction with the various enforcement mechanisms and finally the effect on the society.
This chapter will look at the persistent problems with this framework that are currently present. Other specific problems will fall under the three main problems identified above. The inputs refer to the laws of intestate succession and the legal opinions of jurists as they are written down in statutes, passed through the common law or authored in authoritative texts. These laws set rules and confer rights, duties and obligations to various persons.
The processes of the system include the realisation of those rights, the regulation of the duties and obligation. The outputs refer to the outcome of any interaction with intestate succession laws. Broadly speaking, this framework will include a host of legal acts. From the lawful promulgation of laws, the correct interpretation of those laws by the judiciary, the proper administration and regulation of those laws by the appropriate authorities and the fair enforcement of those laws in an open and democratic society.
One therefore has to understand intestate succession laws not as to mean those laws that lead you to whom is going to inherit, but the broad framework that reflects: 1. What the laws are and where we find them. What has to be done to give effect to those laws? Death notices, edict meetings, appointment of executors, preparation of inventories, preparation of distribution plans, paying off creditors etc.
Who is responsible for the administration of those laws? The Courts, the office of the Master of the High Court, lawyers 4. The historical aspects of intestate succession will mainly be indicating the shortcomings of the system as it was in the past and as they stand in the present day.
It largely applies to customary law and by definition was properly captured by Bennet25, where he said, I usto a la su essio is i testate, u i e sal a d o e ous. Upo the death of the family head his oldest son if the deceased had more than one wife it would normally be the oldest son of his first wife succeeds to the status of the deceased.
This can be substantiated by the sentiments of Mc Nally JA as he was at the time in the case of Moyo v Moyo27, where he said, It is o o ause that u de usto a la ge e all i i a e it is the de eased s eldest so ho i he its the estate 28 the same approach has been taken by the courts in cases such as Matambo v Matambo29,Murisa N.
His estate was governed by customary law. Venia Magaya, the eldest hild of the de eased s first wife was denied the opportunity to be an heiress to he fathe s estate o the asis of the rule of male primogeniture despite her being the eldest child. This was in the agist ate s ou t. Venia appealed against this decision to the Supreme Court. The main argument advanced by the appellant was that the rule of primogeniture was unconstitutional as it violated the fundamental right to equality and non discrimination.
Under section 23 of the former constitution. The court argued that section 23 3 of the former constitution offered an exception to the right against discrimination The court however did concede that the current section 68 of the AEA would outlaw such a cultural practice of denying heirship of females in intestate succession under customary law. The current section 68 had been enacted but did not apply to the Magaya case because the winding up of the deceased estate had begun in On that basis the appeal was dismissed.
This decision has since been overruled in all forms of legal correspondence, particularly on a constitutional perspective. This will be more fully discussed further on in this dissertation. The rule was significantly challenged after the introduction of the Legal Age of Majority Act Its interpretation by the courts in certain cases was a direct attack on the rule of male primogeniture. This is evident from the case Chihowa v Mangwende39 where the court decided that one of the consequences of the Act was that a woman who has attained 18 years of age a o e alidl appoi ted as i testate hei ess to he fathe s estate.
The rule of male primogeniture was settled through section 3 of the Administration of Estates Amendment Act which introduced Part IIIA of the current AEA and repealed the old 37 Co stitutio of i a e, se tio Nothi g o tai ed i a la shall e held to e i contravention of subsection 1 a to the extent that the law in question relates to any of the following matters- a adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; b the application of African Customary law in any case involving Africans or an African….
The law of intestate succession under customary law now is broadly similar to the common law save for the inheritance of customary articles by the heir as indicated by section 68C of the AEA. Basically this means the rule of male primogeniture is no longer the hard and fast rule applying to intestate succession under customary law. The law has been codified and the provisions of section 68F appear to be the new regime for customary intestate succession.
Under this sub heading the shortcomings of the intestate succession framework as particularly oriented from a marriage perspective will be discussed. It is the adverse practical consequences of the marriages to the intestate succession framework that will be looked at. There are three marriage regimes recognisable to the intestate succession framework. First is the civil marriage as governed by the Marriage Act40, the customary marriage as governed by the Customary Marriages Act41 and lastly the unregistered customary law union UCLU as recognised by section 68 3 of the AEA The two latter marriage types create the most challenges.
In the case of Ncube v Dube43 Justice Takuva was faced with a challenge of deciding who the surviving spouse to the estate of the deceased was.
The plaintiff had been married to the deceased customarily though not solemnised UCLU whilst the defendant was married to the deceased under the Marriage Act although separated from the deceased at the time of his death for twelve years. The plaintiff argued that she was the surviving 40 [Chapter ] 41 [Chapter ] 42 A a iage contracted according to customary law shall be regarded as a valid marriage for the purposes of this part notwithstanding that it has not been solemnized in terms of the Customary Marriages Act [Chapter : ]…..
The court held that the real issue was determining the legal status of a customary law marriage contracted when either of the parties was married to someone else in accordance with the Marriage Act. Citing section 68 3 of the AEA the court held that any purported marriage between the plaintiff and the deceased was invalid for the simple reason that it was preceded by a marriage contracted in terms of the Marriage Act.
Consequently the plaintiff could not be declared the surviving spouse. The practical difficulty that is presented by this case is that, even though an UCLU is recognised under section 68 3 of the AEA, the proviso to that section makes certain that the UCLU will be inferior to the civil marriage when such a marriage is contracted during the existence of a civil marriage.
This provision promotes inequality particularly when one looks at the Ncube case above. The wife with the civil marriage can be unjustly enriched because the Act refuses to recognise the UCLU. The contributions of the spouse in the UCLU to purchasing an immovable property will go unrecognised and she stands to suffer the loss. The problem is heightened by the fact that putative marriages, at common law do not provide any legal benefits for the spouse.
They only legitimise the children of that union. The true importance of the concept of a putative marriage lies in the fact that 45 children of such a union are legitimate with all the advantages of legitimate children. As a result the surviving spouse in a putative marriage can receive nothing out of the estate of their deceased partner. In the case of Goremusandu and another v Chitambara and Others46 the court confirmed the position that the existence of a customary law marriage cannot nullify a civil marriage or existence of any other marriage.
The applicant in that case was in an UCLU with the deceased and sought to nullify the marriage of the respondent who had a civil marriage. This position resurfaced in Timbe v Ngonidzashe Family Trust47 where Justice Omerjee concluded that no latter marriage can supercede a prior civil marriage which has not been terminated. The surviving spouse, who had an UCLU was therefore incapable of becoming the surviving spouse of the deceased.
As if that is not enough, Biri v Tsuro48 confirmed the the fact that a spouse cannot be considered a surviving spouse if she has a marriage that ranks lower, in this case, Justice Kudya held that the appellant who had a registered customary marriage where however, a prior civil marriage existed had no locus standi to approach the court to stop the lawful actions of a wife married under civil rites. In the Marara case, the court concluded that an impracticability does not include moral considerations and should not be fettered by such moral considerations.
It further stated that the injustice that the law may bring can only be remedied by the legislature and not the courts. The cardinal principal of statutory interpretation which is looking at the ordinary grammatical meaning of the provision is the only method to understand the meaning of these provisions which clearly cannot be faulted. The provisions practically result in undue hardship and injustices in an array of circumstances.
The concept reflects the development of the intestate succession framework from an oppressive regime denying women the right to inherit the immovable assets of their hus a d s estates. In , it observed the Zimbabwe Harmonised Elections as well as the first round of the Social work is fast gaining popularity in the country and many people are now taking it as a career. According to Chogugudza , social workers, otherwise known as social welfare officers in Zimbabwe, are obscure in professional scopes.
They are somewhat poorly paid and there i. Previous studies carried out in Zimbabwe showed low levels of knowledge and awareness of HTN and T2DM; and the dietary needs for patients with those conditions. In addition, it is a post training referral resource in troubleshooting and maintenance of systems.
The manual covers the following: a Introduction to renewable energy in Zimbabwe b Electricity basics. It provides a study of the structure of the. Doing business in Zimbabwe - Grant Thornton Zimbabwe. Zimbabwe's Constitution of Zimbabwe Cotton Production and Consumption in Zimbabwe. Social Development in Zimbabwe - dfzim.
The U. It is submitted that the following jurisdictional factors must exist before the power of pardon can be used: it must be exercised in consultation with others who are in a position to render advice; there should be a legitimate governmental objective; and reasons for the pardon should be disclosed. It is submitted that the preferable interpretation is that the term of office of the President also expires because of the fact that the term of the President runs concurrently with the life of Parliament.
This is due to the fact that de jure law-making has become the preserve of the executive, thus it is unlikely that the President will withhold assent to a Bill. Moreover, in most cases Cabinet members introduce Bills after having discussed them in Cabinet meetings chaired by the President, and the party whips ensure that the Bill sails through Parliament without much hindrance. Such an approach affirms the independence of Parliament, and simultaneously ensures that Parliament does its job which, after all, is to make laws.
The President is empowered by the Constitution to fix the sessions of Parliament. Therefore, the envisaged new constitution could either jettison the provision or utilise the method used in Namibia.
The preceding analysis highlights that the Constitution of Zimbabwe provides for a semblance of separation of powers. In form the Constitution of Zimbabwe typifies both the Westminster model and US presidential system but in reality it operates differently to those two systems.
The balance of power amongst the three arms of government is skewed in favour of the executive, especially the Office of the President. This resonates with the history of Africa where the executive branch of government arrogated power in its own favour.
For all intents and purposes, the other two arms of government, namely the legislature and the judiciary, have been rendered impotent.
The dominance of the executive especially the Office of the President has led to Parliament being reduced to a rubber stamp body and degenerating to a sub-committee of the ruling party. Owing to the stance of the government to confront and frustrate the judiciary, provisions which state that these arms of government are separate and independent of each other have been rendered nugatory.
Since this has been as a result of constitutional amendments, it might be instructive to adopt the basic structures doctrine. Although the basic structures doctrine will be discussed later, it would be recommended that the new constitution should entrench the separation of powers between the legislature, executive and the judiciary as a basic structure.
The advantage of this is that any constitutional amendment which threatens the separation of powers would be invalidated on the ground that it attempts to destroy the basic structure of the constitution. B The Lancaster Constitution and presidential term limits It is now clear that presidential term limits are a conditio sine qua non of constitutionalism. Prior to the amendment, the incumbent had been the Prime Minister from the 18th of April , being the day when Zimbabwe attained independence from white minority rule.
This is a total of thirty-three years. Arguments why presidential term limits have become a core of constitutionalism will not be repeated again here since they were highlighted in part III. The issue which might seize the drafters relates to whether the clause providing for term limits should have retrospective application or prospective application. It may be argued that in the spirit of constitutionalism the term limit must be retrospective. The advantage of this is that it cures the mischief towards which the limited term was targeted.
The essence of a limited presidential term militates against the proclivity to cling to power which countenances democracy and fosters autocratic rule. Others have argued that the new constitution should set an age limit to the office of the President.
It is submitted that such arguments are driven by political considerations and turn a blind eye to the fact that this would bar potentially brilliant statesman who would have entered politics later in life. In the final analysis, the constitution should not be used as a platform to fight political battles. Rather, it must evince a desire to address and ameliorate the shortcomings of the past that has led Zimbabwe into the political doldrums. Thus, it is submitted that the new constitution should provide for a presidential term limit which is two terms and has prospective application.
This is because the electorate will decide whom they want to lead them as their President. As such, it is unjustified for the drafters to exclude a person solely on the basis of age. Furthermore, the new constitution should provide that the presidential term limit cannot be amended. This is because term limits are now part of the basic structure of the constitution and thus cannot be amended. In any event, Zimbabwe does not suffer 51 Section 29 1 of the Constitution of Zimbabwe.
Moreover, it teaches the nation to rely less on the chance occurrence of a good leader and more on the principles which form the bedrock of the state. It was also noted that the net effect of these amendments has been to recast the Lancaster Constitution.
The two amendments, namely, Amendments no. They entail the abrogation of constitutionalism and elevate fiat of the executive and legislature over the entrenched core provisions of the Constitution.
This question and the answers to the question will be interrogated below. The Lancaster Constitution provides for a special parliamentary majority procedure as well as the publication of the Bill in the Government Gazette not less than 30 days prior to parliament voting on the Bill. That is, a period of 30 days must elapse between the publication of the proposed Constitutional Bill in the Government Gazette and its tabling in any of the two houses of parliament.
In light of the foregoing, there is a need for the drafters of the new constitution to devise a mechanism to control constitutional amendments.
Some of the mechanisms which the engineers could consider are highlighted below. Informed by the philosophy of John Locke it has been reasoned that people are the guardians of the constitution, thus they must be involved in the amendment process. The mechanism provided for in the South African Constitution could be instructive.
J 27, 60 [Hereinafter Fombad, Limits on the power to amend Constitutions]. The basic structures doctrine was enunciated and given impetus in the Indian case of Kesevanda v State of Kerela. However, the doctrine has come under scathing criticism. It has been said that the basic structures doctrine is nebulous and inevitably leads to the executive and the judiciary being on a collision course. It has been noted that by specifically protecting section 1 of the South African Constitution, the drafters have determined the basic structures of the Constitution.
It could be argued that there is certainly nothing wrong if the people through the parliament — their elected representatives — call for such a change. However, this loses sight of the fact that in the age of political party elitism it is doubtful whether parliamentarians indeed are the representatives of the people.
It is submitted that a better approach would be one which couples the threshold required in parliament together with a referendum.
Alternatively, the envisaged new constitution could expressly articulate the basic structures of the constitution and provide that these cannot be repealed. The jurisprudential basis for the latter approach is sourced in both international law and natural law. Since these features are essential and are irreducible, any amendment which has the effect of frustrating them would be unconstitutional. Ultimately, whatever the model chosen, sight should not be lost of the fact that the current method which makes the amendment process the prerogative of the parliament has made the Constitution become a play-thing in the hands of the government.
This has produced dire consequences for the rubric of constitutionalism. Therefore, it is submitted that the Constitution as the supreme law of the land deserves to be insulated from retrogressive amendments otherwise it is not worth the paper it is written on.
It constitutes the ultimate shield against that incremental and invisible corrosion of our moral universe which is more menacing than direct confrontation with visible waves of barbarism. The existence of an independent judiciary fosters a culture of justification and topples the culture of authoritarianism.
These are: security of tenure; a basic degree of financial security; and institutional independence. It has been propounded that the test for ascertaining the existence of institutional independence is an objective one.
In other words, the judiciary should not only be independent but must also be seen to be independent. The impact of this argument becomes pronounced when regard is had to the fact that the higher courts protect the lower courts.
Subsequently, a Parliamentary Committee on Privileges was constituted. On 28 October by a vote of 53 to 42 which was along party lines the recommendation was acceded to.
Having served nine months, Bennett was released in June In a different context, the Supreme Court of Appeal in South Africa declared unconstitutional a resolution through which parliament had suspended one of its members. Although there is no rule of thumb on how the appointment of judges ought to be made, the process has to be imbued with sufficient checks.
Moreover, section 84 2 is redundant because it does not clarify what the Senate is required to do in the circumstances. Therefore, it appears that the President exercises the final decision as to who is appointed to the bench. Thus, the President is vested with wide discretion when it comes to appointing judges, and this creates the perception that individuals appointed to the bench are likely to do the bidding of the President. Furthermore, this is at odds with the Latimer House Guidelines.
The Colloquium was attended by over 60 participants drawn from the judiciary and parliament drawn from 20 Commonwealth countries. The subtext underpinning the reasoning of the Constitutional Court appears to have been the perception that would be created if the President was to be allowed to have carte blanche powers in extending the tenure of a Constitutional Court judge.
The case shows that the process of extending the tenure of a judicial officer and by corollary the appointment of a judicial officer must not vest exclusively in the Executive. The reason is that if the President has wide discretion in appointing judicial officer or extending their terms, the judiciary may be perceived to lack real independence.
Furthermore, it may communicate to the public that the judiciary — which is supposed to be the guardian angels ensuring that government complies with the Constitution — is likely to do the bidding of the government.
Such a perception not only undermines the integrity of the judiciary but it also stifles the edifice of constitutional democracy. The body responsible for the appointment of judges has to be independent of the President. On paper the South African Constitution provides for a greater scope of independence of the judiciary by thwarting political meddling in the composition of the JSC.
The manner in which judges can be removed from office has a bearing on the independence of the judiciary. This is because institutional independence and security of tenure are some of the basic pillars of judicial independence.
The Constitution distinguishes between the removal of the Chief Justice and the removal of other judges. Notwithstanding the presence of safeguards in the constitutional text, the government of Zimbabwe has been charged with using extraneous means to remove the judicial officers from office. They must be stopped. Common law crimes have been, and are being, committed with impunity.
Laws made by Parliament have been flouted by government. The activities of the past months must be condemned. This shows an endemic culture of defying court orders which the government does not favour. It is submitted that respect for the orders of the court are central if the rule of law is to be sustained.
For judicial independence to prevail, Africa requires a mould of political leaders who have respect for the courts.
Nelson Mandela, the former President of South Africa is an illustration of a leader upholding the rule of law. At the time I was assured by my legal advisors that I had the authority and power to do so. I fully accept the decision of the Constitutional Court. We all act under the Constitution and I, as President must be the first one to show respect for the Constitution as interpreted by the Constitutional Court. Thus, Africa needs leaders such as Mandela who will show fidelity to the Constitution and accordingly, to the independence of the courts regardless of the outcome of the decision.
The independence of the judiciary is achieved if the remuneration of the judges is secured by law. In terms of the Constitution, salaries of the judges are to be paid from a Fund Hatchard op cit note 24 at This has given credence to the argument that a volte face of the stance of the court on the land reform is as a result of the court accepting these gifts.
This is because when the government controls the staff and the purse of the judiciary, it amounts to the control of the judiciary. The importance of the courts being in control of its purse strings was noted by the former Chief Justice of South Africa, Justice Ismail Mahomed who observed that if the executive pulled the purse strings: The courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar but no teeth with which to bite and no sinews to execute their judgments, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom or pious poetry.
In that country the task of ensuring that justice is dispensed efficiently lies with the Independent Judicial Council. In the context of South Africa it has been realised that having the executive or legislature control the administration of the judiciary constitutes an affront to judicial independence.
Thus, the Office of the Chief Justice has been created and vested with power to govern its own administration. The Constitutional Court in South Africa has identified that administrative independence is inextricably linked to institutional independence.
Therefore, in crafting the new constitution the notion of judicial independence should not be viewed as a by-product of democracy, but as a cornerstone of democracy. Ultimately, although the constitution may provide the judiciary with the constitutional power it needs, the extent to which constitutionalism will thrive rests with the judges. Therefore, accountability can only be fostered if its principles are constitutionalised.
Institutions that foster accountability constitute a fundamental tenet of constitutionalism. These institutions include inter alia, the Ombudsman; the Human rights commission; the Anti-corruption commission; the Auditor-General; the Electoral commission; the Media commission; the Independent Prosecuting authority and the Judicial service commission.
This is because the non-existence of these institutions undermines the promotion of constitutionalism and accountability. The subsequent discussion on these institutions will be confined to the following institutions namely; the Public Protector; the Human Rights Commission; and the Electoral Commission. The choice of these institutions is not because there ought to be a hierarchy amongst oversight institutions, but it is because of a two-fold rationale.
First, the arguments made with regard to these three institutions apply with greater force to other oversight institutions. Secondly, the context of the country of analysis necessitates the discussion. The country has been said to have a culture of human rights abuse; a system of government which is based on patronage and corruption; and elections which have been marred by violence and fraud.
The Constitution of Zimbabwe establishes the office of the Public Protector. Rev , [hereinafter Fombad, Constitutional Reforms]. However, a shortcoming of the South African constitutional context is the distinction it makes between the appointment of the Public Protector and the Auditor- General, and the rest of the commissioners of other oversight institutions.
The Constitution of South Africa requires a special majority in the appointment of the Public Protector and the Auditor-General, while a simple majority would suffice in the appointment of other commissioners. An appropriate process would be one which divests the President of the wide discretion he possesses, and provide for the involvement of the entire legislature in the process.
In the age of dominant political party rule, this ensures that the voices of minority parties are heard. It also curbs the appointment of individuals who are perceived to be compliant to the diktat of politicians. The Public Protector may be removed from office if found unable to discharge the functions of office. A better method would be the one which fetters the discretion of the President by providing for the involvement of the legislature in the removal process.
It is submitted that the tenure of office should not be left to the design of the legislature, but should be expressly entrenched in the Section 5 b i.
In that regard, the tenure of office for the Public Protector as well as commissioners of other oversight institutions should be a non-renewable term which is reasonably long. This is advantageous as it achieves the twin goals of providing incumbents with security of tenure while simultaneously ensuring that expertise and experience is retained in the institution. However, as the South African context indicates, the ultimate success of the office of the Public Protector or any of the other oversight institutions rests on the appointees staffing them.
Those tasked with leading these institutions should display independence, impartiality and competence. These attributes bolster the public perception that these oversight institutions are able to act as a sufficient counterweight against abuse of power by those in positions of government.
Whereas, docility and timidity by those at the helm of these bodies creates the perception that the last line of defence against arbitrary exercise of power is weak. This perception stifles the chances of constitutionalism succeeding.
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