qualify as law. This qualification is preserved for legislation, common law
principles as well as customary law.
There is criteria by which laws qualify as ‘law’ for purposes of Section 86(2). In
Chimakure & Others v The Attorney-General Of Zimbabwe,27 the Constitutional
Court of Zimbabwe dealt with ‘law’ for purposes of limiting a right. It
emphasised that the requirement that only a ‘law’ can limit rights is precept of
the rule of law. The court held:
The words “contained in ... any law” or “done under the authority of any law”
used in s 20(2) of the Constitution have been given meaning similar to that
given to such equivalent phrases as “provided by law”, “in accordance with
the law”, “prescribed by law”, “determined by law” and “in terms of law” used
in international human rights instruments and constitutions of other
nations. In Chavunduka & Anor supra at 560F it was held that “the
meaning of these phrases is substantially the same”.
However, the court was alive to critical elements a provision must have in order
to qualify as law. These include legality, predictability, accessibility, and
precision. In August v Electoral Commission,28 a decision based on no law was
taken as a clear example of a limitation that was not based or contained in a
law as envisaged by the South African counterpart (Section 36 of the 1996
Constitution) to Section 86(2).
All forms of legislation including delegated legislation qualify as law while
policies, programme documents and contracts do not pass muster. Common
law principles developed by courts also qualify as law. In other words, the
recognised sources of law other than authoritative texts are law for purposes of
limiting rights including artistic freedom.
1.3.4 Law of general application
This quality of the law has not been part of Zimbabwean law prior to the
adoption of the 2013 Constitution. ‘General application’ refers to the nature
and quality of the law that qualifies to limit fundamental rights. At a formal
27
28
Judgment No. CCZ 6/201411, Const. Application No. CCZ 247/09
1999 (3) SA 1 (CC).
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