CONSTITUTIONAL COURT

The Constitutional Court is a superior court of record established in terms of section 166 of the Constitution of Zimbabwe, 2013.
It is the highest court in all constitutional matters, and its decisions in such matters bind all other courts.
Ordinarily the court consists of
(a) the Chief Justice and the Deputy Chief Justice and
(b) five other judges of the Constitutional Court.
Paragraph 18 (2) of Part 4 of the Sixth Schedule to the Constitution (the Savings and Transitional provisions) however provides that
notwithstanding the law in section 166, for seven years after the publication date, the Constitutional Court consists of
(a) the Chief Justice and the Deputy Chief Justice and
(b) seven other judges of the Supreme Court who must sit together as a bench to hear any constitutional case.
This arrangement will subsist until May 2020 when the seven years from the publication date expire.

Outside of the savings and transitional provisions of the Sixth Schedule, the Constitution prescribes for the composition of the Court
in section 166 as follows:
166 Constitutional Court
(1) The Constitutional Court is a superior court of record and consists of—
(a) the Chief Justice and the Deputy Chief Justice; and
(b) 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.
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 alleged 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.
Jurisdiction
The Constitutional Court is the highest court in all constitutional matters and its decisions on constitutional matters bind all other courts.
In terms of the Constitution, the court 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.
Other matters which fall only under the purview of the Constitutional Court are provided under section 167 (2) as follows:
(2) Subject to this Constitution, only the Constitutional Court may—
(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;
(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 terms of section 175(1), any order of constitutional invalidity made by a court must be confirmed by the Constitutional Court for it to be valid.
In addition, only the Constitutional Court can make an order that an Act of Parliament or the conduct of the President or Parliament is unconstitutional.
The Constitution under section 167(4) requires an Act of Parliament to regulate the exercise of jurisdiction by the court.
To fulfil that obligation, the finalization of the Constitutional Court Bill is at an advanced stage.
The Constitutional Court Rules were promulgated on 10 June 2016 under Statutory Instrument 61 of 2016.
Of significance is the peremptory requirement under section 167(5), that the Rules of Court must allow a person, when it is in the interests of justice and with
or without leave of the Constitutional Court -to
(a) bring a constitutional matter directly to the Constitutional Court;
(b) appeal directly to the Constitutional Court from any other court;
(c) appear as a friend of the court
In this regard Rule 21 (1) of the Constitutional Court Rules provides for matters which do not require leave of court for a litigant to approach the court directly.
These are: -
(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.
Any other matters not specified under rule 21 (1) require an applicant to seek leave for direct access in terms of rule 21 (3) whilst Rule 31 makes provision for applications for leave to appeal to the Constitutional Court.
Rule 10 makes provision for the appearance of a person as a friend of the court.
The rules further make provision for the referral of constitutional matters to the Constitutional Court in terms of section 175 (4) of the Constitution.

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