• Laws must be Objective: so far as possible laws must leave no discretion to the
persons who are to apply them.
Fundamental to the concept of the rule of law is the idea that all the three branches
of government must operate within their own particular spheres: the Executive is
restricted to administration, the Legislature to enacting laws, and the Judiciary to
adjudicating legal disputes and interpreting the laws. All three branches are subject
to the law.
The rule of law in relation to the new constitution
How does the rule of law relate to the new constitution that is being prepared by
COPAC; or, more precisely, can the new constitution ensure that the rule of law will
apply within Zimbabwe? It can, through the following means:
Limited government: For the rule of law to prevail the powers of each branch of
government must be limited. If the new constitution provides for a powerful
executive with extensive discretionary powers then there cannot be the rule of law.
Government must be subject to the law: Everyone, including government officials
and the State itself, must be subject to the law. This should be stated expressly, but
in addition it should be reinforced by provisions giving ordinary people the right to
sue the State and its officials for infractions of their rights. Section 24 of the present
Constitution goes some way towards this by giving people a right to apply to the
Supreme Court for redress for infringements of their rights under the Declaration of
Rights. No immunity should be given to any State official, from the highest to the
lowest. If, for example, it is felt that the work of government might be impeded if the
President could be sued personally in the courts, then the President’s immunity from
legal action should be lifted as soon as she or he leaves office.
Separation of powers: The separate roles of the different arms of government must
be clearly stated in the Constitution, and there should be a statement that, as a
general principle, their powers should be kept separate. It should be clear, for
example, that a law such as the Presidential Powers (Temporary Measures) Act is
contrary to constitutional principles. The Executive’s power to appoint members of
the legislature, either directly or indirectly, should be removed or severely curtailed.
Independence of the judiciary: A mechanism must be established to ensure that
members of the judiciary — magistrates as well as judges — are appointed by an
independent body. The Judicial Service Commission established under the present
Constitution is inadequate for this purpose since most of its members are appointed
by the President. It would be better if its members were appointed after public
hearings by a select committee of Parliament; better still if judges were selected by
the Judicial Service Commission and appointed by the President after being approved
by Parliament [this could be a useful role for the Senate].
Impartial enforcement of laws: The Attorney-General should remain responsible for
deciding whether or not to enforce the law through criminal prosecution. He or she
should, however, be appointed by an impartial body in the same way that judges of
the High Court are appointed. He or she should not be a member of Parliament or
the Cabinet and like judges should not make public his or her party affiliation.
Apart from the judiciary, the enforcement of the law is mainly in the hands of the
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