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constitutionality3 and that no what the concept, purpose In the realm of legal theory,
one within the polity be and function of law is in any there is the natural law
above the law.4 given society. Although theory and the positivists
Nevertheless, even provided there is some philosophical view of the concept of law.
the rudimentary, all- disagreement about why we The natural law theory states
inclusiveness and have law, it is generally that law is coterminous with
comprehensiveness of what accepted that the main the edicts of morality, justice
the „rule of law‟ ought to be, purpose and function of law or fairness. Put bluntly, the
whenever and wherever „the is basically to administer theory purports that an unjust
rule of law‟ is examined, justice, to preserve peace law is no law at all.7
because the propriety of and order, to enforce
justice is determined by the morality and to limit the Contrary, the positivist theory
perceptions of the people extent of the powers of says law is law, whether it is
who dominate a given government. Thus, it is vital to just or unjust, fair or unfair is
society, the rhetoric of conflate the purpose, another issue. It argues that it
government leaders often function and the inherent is essentially the aspect of
contrasts sharply with the aspect of the „rule of law‟ enforceability by the state
sobering political reality. with modern liberal and that qualifies law into law.8
In the realm of legal theory it constitutional democracy The problems that however
has been aptly said that: dogmas.6 Although it is arise from these views are
The substance of justice widely believed the „rule of found in what is meant by
is as much, if more, a
question of political
law‟ and constitutional these so-called precepts of
philosophy as of democracies go hand-in- law. There is no generally
jurisprudence. It is
hand, closer scrutiny accepted view of what
ultimately a question of
perceptions of the however, reveals that exactly is meant by just or
relations of human
constitutionalism and fair laws. Thus, what may be
beings in society5.
democracy might not just and fair to Tom, Dick and
A first step in defining the always be in harmony, Harry may not be just and
„rule of law‟ is to examine resulting in a clash between fair to Sam, John and Peter.
3
‘Constitutionality’ is the condition of acting in the „rule of law‟ and
accordance with the rules and regulations
provided by an applicable constitution. These
constitutional democracy. 7
The Latin maxim ‘lex iniusta non
laws are enforceable by the state. est lex’ (an unjust law is no law at all) aptly
4
H. Hart (1992) The Concept of Law. Revised underscores the main idea of
edition. Oxford: Oxford University Press, pp. natural law.
6 8
167-8. L. Madhuku (2010) An Introduction to L. Madhuku (2010) An Introduction to
5
Penner (1999), p. 299. Zimbabwean. Zimbabwean.
manner by the jurisdiction of absolutely independent. the „rule of law‟. The doctrine
a court. Dice has this to say Judges in such instances works hand in glove with the
on this notion, may do whatever they want concept of the rule of law. It
Englishmen are ruled by the with the law and may has been traditionally
law and the law alone. Men
may with us be punished for
prejudice the lawful and accepted that the
nothing else.11 unlawful interests of their Constitution of any country is
appointers. the supreme of law of the
Secondly, Dice notes
state. It creates the arms of
equality before the law, that
According to D Smith, Dice‟s government and prescribes
is, no person is above the
ideas rooted in Whiggish safeguards against the
law and everybody is subject
Libertarianism13 were arbitrary use of state powers.
to the ordinary law and the
indiscriminately influential for This has been widely
jurisdiction of the court.
two generations, and now described as checks and
Thirdly, he notes a judge
lack contemporary balances of the arms of
made constitution, that is to
relevance thus they no governments or states. It is a
say the rights of people are
longer warrant any detailed basic tenet of
protected by ordinary courts
analysis. With this in mind, constitutionalism that a
and not necessarily
one can deduce that Dice‟s constitution is not simply a
guaranteed by the contains
conception of the rule of law collection of rules and
of a written constitution.12
is problematic as it vests all institutional arrangements
Dice advocates giving
the powers of making and regarding the use of state
judges more powers in
interpreting the law in power, but it is, in addition,
exercising discretion and
judges. about placing limits on that
depending upon the
power. It is the idea that
common law as opposed to
The doctrine of government should be
the supremacy of the written
constitutionalism can by no legally limited and that the
constitution. However,
means be left out when authority of government is
Dice‟s conception of the rule
discussing the concept of dependent on the
of law especially on the idea
enforcement of such
of judge made law may be
13 limitations against itself that
problematic in countries Whiggism is a historical political philosophy
that grew out of the parliamentary faction in
constitutes the rule of law.
where the judiciary is not the wars of the three kingdoms (1639-1651).
Whiggism embraces the idea of supremacy of
The principle says that a
parliament Libertarianism (from Latin: Libertas,
constitution not only
11
A.V. Dice, the Rule of Law, an Introduction to meaning freedom) is a collection of political
the Study of the Law of the Constitution, 188 philosophies and movements that uphold
12
Ibid. liberty as a core principle.
describes but also restrains have personally tabulated a interests of any political
party or cause; or
government. Indeed, the use resignation letter amidst the violate the fundamental
of state power can be widespread unpopularity rights or freedoms of any
person.15
justified based on what the and public condemnation of
constitution stipulates but this his corrupt leadership and
The intervention of the
does not necessarily entail the execution of a
military in this case was by no
constitutionalism, provided parliamentary motion to
means meant to protect the
the constitution is remove him. Although the
nation‟s security or
unrestricted and actually resignation followed the
fundamental freedoms of
encroach on fundamental legal procedures of
the people but to prejudice
freedoms and human rights. impeachment in terms of
the interests of (ZANU PF), the
Constitutionalism also section 97 of the Constitution
revolutionary and liberation
signifies the idea of of Zimbabwe, the process
war party that had been
constitutionality or was massively militarized. The
marred by a notorious cabal.
adherence to rules set forth army invaded the Zimbabwe
The army thus did nothing
by a constitution. Thus, a Broadcasting Corporation
but eliminate the cabal to
conduct by the state that (ZBC), all Intelligence
impose its own pro-army
fails to adhere to laws Services bases and the State
leadership. This was
contained in a constitution House, a move that more or
afterwards justified by the
fails the test of less appeared to be a
fact that the Commander of
constitutionalism. military coup de tat
the Defense Forces General
A notable example of how subverting a constitutionally
Constantine Chiwenga16
the legislature, judiciary and elected president. This was in
who spearheaded the so-
the polity at large can clear contravention of
called coup was then
compromise the propriety of section 208 of the
appointed Vice President
constitutionalism was the Constitution of Zimbabwe
and many other military
removal of President Robert which clearly states that:
officials made cabinet
Mugabe14 from office in Neither the security
services nor any of their ministers after the ouster of
November 2017. The 94 year members may, in the President Mugabe. In these
old leader was reported to exercise of their
functions--act in a
partisan manner; further
15
Constitution of Zimbabwe, Amendment (No.
14
Robert Gabriel Mugabe was Zimbabwe’s first the interests of any 20) Act 2013.
16
black prime minister from 1980 to 1986. From Constantino Guvheya Chiwenga is the current
1987 he served as president for 30 years until political party or cause; vice-president of Zimbabwe. He is a retired
his ouster in November 2017 following a prejudice the lawful general of the Zimbabwe Defense Forces and
military coup de tat. liberation war veteran.
circumstances, because of by law and that the subjects borne in mind that whenever
the absence of legal shall not be exposed to the a certain group of individuals
corrections and scrutiny of arbitrary will of the ruler. Thus, in a country or society are
legal action in our system, there should be no arbitrary above or are over protected
President Emerson exercise of power, there by the law there would be
Mnangagwa‟s17 government should be effective control „no rule of law‟ in that
was actually recognized. In over delegated legislation, country or society.
other words, the army had there should be an Thus, having this in mind, one
intervened to rebuke the independent judiciary, and can purport that there is no
factional battles of a political fundamental individual rights rule of law to talk of in
party which was totally should be safeguarded by Zimbabwe for example and
against the law. In this the ordinary law of the land. all other countries which give
regard, the army leaders sort This is to confirm that their presidents immunity
to gain from the fruits of everyone within a society from prosecution. The
participating in the coup should be treated and be Zimbabwean Constitution for
which in turn paid up. protected equally by the law instance states that while in
of the land and no one office the President is not
The rule of law is also should be placed above or liable to civil or criminal
coterminous with the idea of below the law. This can be proceedings in any court for
equality before the law and supported by section 2(2) of things done or omitted to be
equal protection before the the Constitution which states done in his or her personal
law “without any form of that the obligations imposed capacity.20This law over
selectiveness and by the Constitution are protects the President that
discrimination”.18 Wade and binding on every person, he or she can do whatever
Philips are of the opinion that natural or juristic, including deem necessary to him or
the rule of law means the the state and all the her to prejudice the interests
exercise of government executive, legislative and of his or her own political
powers shall be conditioned judicial institutions and cause while in the office. This
agencies of the government undermines equality before
17
Emerson Dambudzo Mnangagwa is serving as at every level, and must be the law which is one of the
the third and current president of Zimbabwe.
He assumed the presidency in November 2017
fulfilled by them.19 essential elements of the rule
following a military coup de tat that removed
Considering this, it can be of law. Section 98(1) of the
Robert Mugabe his longtime ally and
predecessor.
18 19
Article 7 of the Universal Declaration of Constitution of Zimbabwe Ammendment (No.
20
Human Rights. 20) Act- 2013. Ibid, Section 98(1)
Presidential immunity from Apart from the above, it is Nixon32 where it was argued
prosecution in Section 98 of also worth noting that where that the Supreme Court is
the Constitution is for the there is rule of law, each also subject to legal
President only. This can be decision by any court should correction when it construed
taken to be a clear violation be subject to legal a federal statute in a way
of the rule of law because correction.31 The courts of that was inconsistent with
the rule of law postulates law are in actual senses the the congressional
that everyone is under the oasis of civil effective legal sentiments33. Thus one can
law and should obey the justice and the last pillar of note that where there is the
law. Suffice to mention is that self-defense by a tormented rule of law, the decisions of
such an action takes away people. The fact that the the Supreme and High
the powers of the Zimbabwe Supreme Court and the Courts should be subject to
Anti- Corruption commission Constitutional Court in correction, perhaps by some
of directing the Zimbabwe and other many other experts of law in order
commissioner general of countries are the highest to promote the rule of law.
police to investigating cases courts of appeal and their
of suspected corruption and decisions bind everyone The rule of law is also the
to report to the commission violates the essence of the condition whereby judicial
on the results of any such rule of law. The judges of the discretion is restricted.34
investigation.30The prohibition Supreme Court and the According to Cicero
of the police to arrest the Constitutional Court may Men should be a mere
mouthpiece for the law
honorable minister clearly sometimes make mistakes as to express itself.35
indicates that there is no rule human beings and
Cicero argues that restricting
of law in this country misinterpret the law because
judicial discretion is a
because the government of this these highest Courts
officials are running contrary should be subject to legal necessary element to
Because of this, one can say No one should be Zimbabwe when the
allowed to judge his or
that the idea of limiting her own cause.38
principle of the separation of
judicial discretion is powers is infringed from the
motivated primarily by the Having this in to onset by certain
desire to achieve the considerations, one can take constitutional provisions.
precepts of the rule of law. the example of Zimbabwe
Giving judges the discretion and assert that there is no The original understanding of
would be a clear violation of rule of law in Zimbabwe the rule of law includes
the principle of the because the president is substantive commitment to
separation of powers which given powers by the fundamental freedoms and
constitutes the essential Constitution to appoint human rights and their
elements of the rule of law. judges.39There is no doubt protection of the
that the judiciary which is fundamental human rights.41
In addition to the above, the said to be an independent Fundamental human rights
rule of law can also be said organ is not independent may include among other
to be where the judiciary is and hence it can always rule rights the right to vote, the
accorded independence in favor of the ruling party or right to a fair hearing and
and everyone has the the President. This notion can the right to demonstrate
opportunity to be heard in be buttressed by the idea peacefully. The right to a fair
the courts of law.36 The put forward by Brian trial entails that a litigant‟s
independence, impartiality Tamanaha that judges case should be heard and
and effectiveness of the individually and as a group be determined within a
courts are central to the rule must be committed to reasonable time of which
of law and democratic interpreting and applying failure to do so may
governance, and therefore the law to everyone prejudice the other party
their functioning should be including government particularly the plaintiff.
free from interference by the officials.40 Thus, based on the More so, everyone again
state or any other agency.37 above the rule of law is should be accorded the
John Finnis argues that, difficult to achieve in opportunity to a legal
representation regardless of
38
Legal Studies Research Paper Series Paper
his or her economic
36
J.S. Mill (1993) Utilitarianism, Liberty and NO.07-0082 September 2007
39 41
Representative Government. Section 180: Constitution of Zimbabwe, Magna Carta, the Rule of Law, and the Limits
London: Everyman Paperbacks. Amendment (No.20) Act- 2013. on Government, Jesus Fernandez-Villaverde,
37 40
Constitution of Zimbabwe Amendment Legal Studies Research Paper Series Paper University of Pensylvania, October 15, 2015.
(No.20) Act 2013. NO.07-0082 September 2007. ,
"But what, after all, is a law? […] When I say that the
object of laws is always general, I mean that law
considers subjects en masse and actions in the
abstract, and never a particular person or action. […]
On this view, we at once see that it can no longer be
asked whose business it is to make laws, since they are
acts of the general will; nor whether the prince is
above the law, since he is a member of the State; nor
whether the law can be unjust, since no one is unjust to
himself; nor how we can be both free and subject to
the laws, since they are but registers of our wills."
‘’MSL is a possibility’’