The Constitutional Court of Zimbabwe is a superior court of record and it is the highest court in all constitutional matters. It is currently composed of the Chief Justice, the Deputy Chief Justice and eleven (11) other judges of the Constitutional Court. While the Constitution makes provision for the composition of the Constitutional Court, the current Constitutional Court’s composition is governed by paragraph 18 (2) of Part 4 of the Sixth Schedule to the Constitution. It provides that notwithstanding the provision of section 166 for the seven years after the promulgation of the Constitution it will be composed of the Chief Justice, the Deputy Chief Justice and seven other judges of the Supreme Court. A bench of these nine judges currently constitutes a bench for the hearing of a constitutional case.
|166 CONSTITUTIONAL COURT||JURISDICTION|
|The composition of the Constitutional Court is provided for in section 166 of the Constitution which states as follows;||The Constitutional Court is the highest court in all constitutional matters and its decisions on constitutional matters binds all other courts. In terms of the Constitution, the court decides only constitutional matters and issues connected with decision on constitutional matters in particular references and applications under section 131 (8)(b) and paragraph 9 (2) of the Fifth Schedule.|
|(1) The Constitutional Court is a superior court of record and consists of—||There are also matters which fall only under the purview of the Constitutional Court in terms of section 167 (2):|
|(a) the Chief Justice and the Deputy Chief Justice; and||(2) Subject to this Constitution, only the Constitutional Court may—|
|(b) five other judges of the Constitutional Court;||(a) 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) 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.||(b) hear and determine disputes relating to election to the office of President;|
|Under this composition, the Constitution makes provision for the composition of the Court when it hears certain matters. In terms of section 166 (3)(a), matters relating to the breach of fundamental rights enshrined in Chapter 4 or the election of a President or Vice-President ought to be heard by all the judges of the Court. All other cases except those specified may be heard by at least three judges of the Court.||Subject to the Constitution, only the Constitutional Court may—|
|COURT SITTINGS||(a) 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;|
|The court permanently sits at Harare on Wednesdays||(b) hear and determine disputes relating to election to the office of President;|
|(c) hear and determine disputes relating to whether or not a person is qualified to hold the office of Vice-President; or|
|(d) determine whether Parliament or the President has failed to fulfil a constitutional obligation|
In addition, any order of constitutional invalidity by any other court must be confirmed by the Constitutional Court for it to be valid and only the Constitutional Court can make an order that any Act of Parliament or the conduct of the President or Parliament is unconstitutional.
The Constitution provides that there be an Act of Parliament which provides for the exercise of the jurisdiction of the court and for there to be Rules of the Constitutional Court. The finalization of the Constitutional Bill is at an advanced stage. The Constitutional Court Rules were promulgated on the 10th of June 2016 under Statutory Instrument 61 of 2016. Of key importance to note are the matters which the Constitution itself provides that the Rules of Court ought to cover in terms of section 167 (5) of the Constitution.
One of these was the provision for bringing to court of constitutional matters directly with or without leave of court. Rule 21 (1) of the Constitutional Court Rules provides for matters which do not require leave of court for a litigant to approach directly.
(1) The following matters shall not require leave of the Court—
(a) disputes concerning an election to the office of President or Vice-President;
(b) disputes relating to whether or not a person is qualified to hold the office of President or Vice- President;
(c) referrals from a court of lesser jurisdiction;
(d) determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;
(e) appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law; (f) where the liberty of an individual is at stake;
(g) challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.
The rest of the matters not specified under rule 21 (1) require the applicant to make an application for direct access in terms of rule 21 (3). Rule 31 of the Constitutional Court Rules makes provisions for applications for leave to appeal to the Constitutional Court. Rule 10 makes provision for the appearance of persons as amici curiae. The Rules make provision for referrals to the Constitutional Court in terms of section 175 (4) of the Constitution.