STATUTES REQUIRING CONSTITUTIONAL ALIGNMENT
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ment valuers, without laying down any criteria whatever for their valuation (section 5)
and states that if the acquisition or proposed compensation is contested the Administrative Court may fix any compensation it deems reasonable in the circumstances
(section 8(4)).
3. Administrative Court Act [Chapter 7:01]*
The Act was amended by the General Laws Amendment Act, 2016, purportedly to
bring it into line with the Constitution. Some of the amendments are themselves unconstitutional:
•
Section 5(2), as amended, states that the President, on the recommendation of
the Judicial Service Commission, fixes the conditions of service of judges of
the court, including their salaries, allowances and pensions. Under section
188(1) of the Constitution their salaries and benefits should be fixed by the
JSC with the approval of the President. Their pensions should be fixed under
the Judges Salaries, Allowances and Pensions Act [Chapter 7:08], since they
are judges. [Chapter 7:08 is itself unconstitutional, however; see below]
•
Section 5(3) states that magistrates with seven years’ experience are eligible to
be appointed to the Administrative Court. This is unconstitutional: section
179 of the Constitution lays down the qualifications for judges of, inter alia,
the Administrative Court and seven years’ experience as a magistrate is not
one of those qualifications.
4. Administrative Justice Act [Chapter 10:28]*
The Act should be amended:
•
to extend the definitions of “administrative action” and “administrative conduct” in section 2 of the Act to correspond with the wider meaning of “administrative conduct” used in section 68, as read with section 332, of the Constitution. This will have the effect of extending the application of the Act.
•
to amend section 3:
o to incorporate the requirements of proportionality, impartiality and
substantive fairness (sec 68(1) of the Constitution). This will allow
administrative action to be set aside on the ground that it is substantively unfair, and will greatly extend the High Court’s power to review
such action;
o to repeal subsection (3), which allows illegal and unfair decisions to be
made.
•
to incorporate time-limits within which courts and tribunals must deliver
judgments to ensure that justice is not unduly delayed.
The list in the Schedule excluding certain administrative actions from the Act should
be revised – e.g. why should disciplinary action against members of the security forces be excluded?
5. Agricultural Finance Act [Chapter 18:02]*
Section 38 of the Act empowers the AFC to seize property of a defaulting debtor
without obtaining a court order allowing it to do so. This amounts to self-help and is
regarded as contrary to public policy by courts in Zimbabwe and in every other country which has even a passing regard for the rule of law. It violates the constitutional
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