Sharon Hofisi Legal Matters
Justiciability is a term that is frequently applied to discourses that relate to constitutional rights. Zimbabwe’s Constitution, which was adopted in 2013, hereinafter referred to as the Constitution, contains a progressive and justiciable Bill of Rights.
The Bill of Rights can also be referred to as the Declaration of Rights or the Fundamental Rights Chapter. Fundamental rights in the Constitution are found in Chapter 4. The Bill of Rights enshrines, respects, protects and promotes fundamental human rights. These rights include civil and political rights (CPR), economic, social and cultural rights (ECOSOC) and group rights.
For starters, CPR are usually referred to as first generation rights. ECOSOC rights are referred to as second generation rights. Group or collective rights are also called third generation rights. The categorisation of rights into generations is not meant to give pre-eminence to any rights, but refers to the evolution of the different rights.
A summary of the evolution of human rights is to be presented here. The human rights discourse gathered normative momentum after the end of the two world wars.
The Universal Declaration of Human Rights (UDHR) became the first soft law to speak to the need for the community of states to commit to respecting human rights. By 1966, CPR became part of the hard sources of international law.
They were contained in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR was largely “occidental” (in the relative use of that term to describe Western Europeans as occidentalists) in origin because Western European countries emphasised on those rights. Zimbabwe ratified the ICCPR in 1991.
The same year, the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect as a reactionary Covenant from countries who were considered as oriental cultures, mostly from Eastern Europe.
The interpretation of the right to administrative justice
The interpretation of this right is largely understood from the “difference between the interpretation of the Constitution and ordinary statutes”. One of the elements of justiciability include the presence of a right in the Rights Chapter.
The right under consideration is included in Section 68. Its interpretation is based on the conventional ways of interpreting the Constitution. It is important to state at this juncture that constitutional rights in most countries usually apply vertically.
This means that the obligations of four duties to respect, protect, promote and fulfil obligations is imposed only on the legislative and other governmental bodies.
In this vein, constitutional rights cannot be invoked against private persons. A caveat has to be placed in terms of the relationship between AJA and the Constitution.
The determination of the justiciability of certain rights, however, depends on the content of the right as contained in the enabling statute. Section 2 of AJA broadly defines administrative authorities to include private individuals who exercise functions of a public nature.
The Constitution, as the supreme law of the land and a highest statute, is interpreted just like any ordinary statute.
This position was affirmed by Fieldsend CJ (as he then was) in the case of Hewlett v Minister of Finance 1981 ZLR 571 that “in general, the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation”.
It is, however, important to state that the duty of the court does not end there. While ordinary statutes are interpreted using rules of interpretation such as mischief, golden, teleological or literal, or other forms of statutory interpretation, the Constitution is usually given a generous and purposive meaning.
Considerations are made from foreign law, international law and important provisions in the Constitution.
Evolution of the right to administrative justice
Before the adoption of the Constitution, the right to administrative justice was not justiciable. As such, it was difficult to determine how the validity of both legislative and governmental action could be judged.
Zimbabwe made considerable strides towards the development of a transformative home-grown Constitution that has an expansive Bill of Rights.
Quintessentially, the presence of a fundamental right in a Constitution provides national courts with the powers of judicial review.
The national courts will determine the validity of administrative legislation or governmental actions to the extent that they are consistent with the provisions of the Bill of Rights. This is particularly so because a constitutional right is a legal entitlement that can be enforced in competent courts of law.
The evolution can be divided into the pre-2004 period, the period between 2004, and 2013 and the post-2013 period.
The three natural justice principles that were usually given credence by our courts include the right to be heard, legitimate expectation and the principle against bias. The history of natural justice is rich. Biblically, it was accorded to the very first man to be created, Adam.
The pre-2004 period
Administrative authorities were enjoined to uphold natural justice principles when making decisions that adversely affected individuals. These principles seek to ensure that administrative decisions are only taken after fair and equitable procedures have been followed.
The rationale for upholding the natural justice principles is that administrative authorities must guarantee that the parties who will be affected by the decisions receive a fair and unbiased hearing.
If the principles are observed, decisions are reached only after the tribunals have been informed of the facts that are relevant to their determinations.
Further, decisions are reached on an objective evaluation of the evidence and not on any grounds of personal interest or hostility or favouritism to particular parties.
The yardstick that is required is the adherence by administrative authorities (AAs) to standards of procedural fairness. The legal maxim “justice must not only be done but must be seen to be done” finds expression here.
These principles assist administrative decision-makers to reach substantively correct decisions.
There are two principles of natural justice. These are:
i) The principle that the party or parties involved in the matter should be given the proper opportunity to present their cases before the administrative decision-maker decides the case. (This is referred to as the audi alteram partem principle, which means, literally, hear the other side, i.e. hear both sides.)
ii) The principle that all the administrative decision-makers should be impartial and unbiased in their deliberations. (This is referred to as the nemo judex in sua causa principle which means, literally, that no person may be a judge in his own cause.)
The period 2004-2013
The Administrative Justice Act (AJA), Chapter (10:28) was promulgated in 2004. It had the effect of codifying the natural justice principles that are referred to above.
The Act compels public authorities who are about to take administrative action that affect the right of a person to act fairly, within time stipulated by law and give reasons, otherwise the aggrieved person has a right to approach the High Court for remedies (Hanzi, 2011: 96).
The promulgation of AJA laid the legal framework for the right to administrative justice. This position was captured by Makarau JP (as she then was) when she remarked in light of AJA in the following manner:
“That the promulgation of this Act brings a new era in administrative law in this jurisdiction cannot be disputed. It can no longer be business as usual for all administrative authorities, as there has been a seismic shift in this branch of the law.”
The remarks by Makarau J resonatel with the remarks by Patel J in Zindoga &Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006 (2) ZLR10 (H), where he said at p 13D – E that:
“It is axiomatic that any party who has a right or interest that is likely to be affected by an administrative decision or which is susceptible to being prejudiced thereby must be heard before that decision is taken. This is dictated by the time honoured precept of the common law embodied in the audi alteram partem rule and now codified in the Administrative Justice Act [Chapter 10: 28]” (emphasis added).
The post-2013 period
Zimbabwe held a referendum in 2013 that adopted a Constitution with a broad Bill of Rights. The Constitution strengthened the institutional framework for the promotion and protection of rights by either establishing new institutions such as the Constitutional Court, the National Prosecuting Authority, the Zimbabwe Gender Commission and the National Peace and Reconciliation Commission (UPR 2016: 1).
One such right that is protected and is the subject of this discussion is the right to administrative justice which is now enshrined in section 68 of the Constitution.
The Constitution is doubtlessly a progressive charter which contextualised fundamental rights that suited Zimbabwean needs.
The rights are understood from the working definition of Zimbabwe’s constitutional democracy. Constitutional democracy is used in this paper to mean “power from the people, by the people, for the people, reduced into writing in a supreme national charter”.
In this light, the superior courts in Zimbabwe have been referring to the embedment of the right to administrative justice in the Constitution. In Telecel Zimbabwe (Private) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe and Others, HH/446/15, Justice Mathonsi appositely remarked that:
“The concept of administrative justice is now embedded in our Constitution. It provides the skeletal infrastructure within which official power of all sorts affecting individuals must be exercised.”
In terms of Section 68 (1), the right is framed in a manner that shows eight elements which are:
Every person to assert the right to administrative justice has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.
Sharon Hofisi is an adminstrative law lecturer at the University of Zimbabwe