Zimbabwe Rule of Law Journal |157
has the duty and obligation to make and debate laws, these laws still have to pass constitutional
muster because the constitution is the supreme law.
This paper articulates the relevance of the Nkandla judgment for Zimbabwe and the lessons which,
if applied locally, would ensure that Zimbabwe begins to live up to the expectations required of a
genuine constitutional democracy.
Introduction
On 31 March 2016, the Constitutional Court of South Africa made legal history when it found that the
President of the Republic of South Africa had failed to uphold, defend and respect the Constitution1
by failing to comply with the recommendation for remedial action made by the public protector.2 This
case has become known as the ‘Nkandla judgment’ and the ruling was unanimously celebrated by
the legal fraternity, civil society and politicians alike in South Africa as being an affirmation of the
supremacy of the constitution, the effectiveness of the principles of transparency and accountability,
and the enforcement of the rule of law.
The primary issue brought before the constitutional court was whether the President of the Republic
of South Africa had a constitutional duty to comply with recommendations made by the public
protector and whether, in failing to do so, the President had failed to uphold, defend and respect
the constitution.3
The Constitutional Court further had to decide whether the National Assembly, in exonerating the
President from complying with the recommendations provided by the public protector, had failed
in its constitutional obligations to scrutinise and oversee executive action and to hold the President
accountable as a member of the executive.
1
The Constitution of the Republic of South Africa as adopted on 8 May 1996 and amended on 11 October 1996 by the
Constitutional Assembly.
2
See also s 182 of the Constitution of South Africa which establishes the office of the public protector No. 23 of 1994:
Public Protector Act, 1994.
3
Ibid
Select target paragraph3
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