REDRESS/AMANI
Charter on Human and Peoples Rights adopted by the African Heads of States and
Governments in Banjul, the Gambia, in 1981, and which entered into force on 21
October 1986.
The Constitution provides that any international convention acceded to
shall be
subject to approval by Parliament, and shall not form part of the law of Zimbabwe
15
unless it has been incorporated into the law by
Parliament.
The Constitution is
the supreme law and makes no mention of customary international law, or
international treaty law, apart from setting out the mechanisms for the accession to
and incorporation of treaties.
It therefore takes precedence over customary
international law16 and over treaties, which have been incorporated into domestic
law. In interpreting the Declaration of Rights, the courts have had recourse to
international law treaties and their interpretation in other jurisdictions. 17
14
For example The Harare Commonwealth Declaration, sighed 20 October 1991, by the Heads of Government of
the member countries of the Commonwealth, which re-affirms member countries commitment to the primacy of
equal rights under law, and includes a specific pledge by member countries to concentrate, with renewed vigour, on
establishing national systems based on the rule of law and the independence of the judiciary: see The Harare
See also The Latimer
Declaration, 1991, located at http:www.anc.org.az/ancdocs/commonwealth/Harare.html.
House
Guidelines
on
Parliamentary
Supremacy
and
Judicial
Independence,
located
at:
http://www.comparlhq.org.uk/download/latmrhse.pdf. (A Joint Colloquium held at Latimer House in the United
Kingdom, from 15-19 June 1998, which adopted guidelines for judicial autonomy among member countries of the
Commonwealth). Zimbabwe was under suspension from the councils of the Commonwealth from March 2002 until
December 2003 when it withdrew from the organisation after the suspension was extended. Zimbabwe is a
member of the United Nations, the African Union (the former Organisation of African Unity), the Southern African
Development Community, and the Non Aligned Movement. It is also an African Caribbean Pacific (ACP) State of the
European Union.
15
Section 111B (Effect of international conventions, etc.):
(1) Except as otherwise provided by this Constitution or
by or under an Act of Parliament, any convention, treaty or agreement acceded to, concluded or executed by or
under the authority of the President with one or more foreign states or governments or international organisations
(a) shall be subject to approval by Parliament; and
(b) shall not form part of the law of Zimbabwe unless it has been incorporated in to the law by or under an Act of
Parliament.
(2)
(3) Except as otherwise provided by this Constitution or by or under an Act of Parliament, the provisions of
subsection (1)(a) shall not apply to (a) any convention, treaty or agreement, or class thereof, which Parliament
has by resolution declared shall not require approval in terms of subsection (1)(a); or (b) any convention, treaty or
agreement the subject-matter of which falls within the scope of the prerogative powers of the President referred to
in section 31H(3) in the sphere of international relations; unless the application or operation of the convention,
treaty or agreement requires- (i) the withdrawal or appropriation of moneys from the Consolidated Revenue Fund;
or (ii) any modification of the law of Zimbabwe
. [Section as substituted by Section 12(1) of Act 4 of 1993
(Amendment No.12). Section 12(2) of Act 4 of 1993 provides that the new section 111B shall not have the effect of
requiring approval by Parliament of any convention, treaty or agreement which was acceded to, conclude or
executed by or under the authority of the President before 1 November, 1993, and which, immediately before that
date, did not require approval or ratification by Parliament.]
Section 31H of the Constitution deals with the executive functions of the President, including in subsection (4)(b)
the power, subject to the provisions of the Constitution, to enter into international conventions, treaties and
conventions. Section (1) vests executive authority in the President, and section (3) grants the President
such
powers as are conferred upon him by this Constitution or by or under any Act of Parliament or other law or
convention and, subject to any provision made by Parliament, shall, as Head of State, in addition have such
prerogative powers as were exercisable before the appointed day. In entering into international conventions,
treaties and conventions the President
shall act on the advice of the Cabinet, except in cases where he is required
by this Constitution or any other law to act on the advice of any other person or authoritysection (5).
16
Under Roman-Dutch law (which can be regarded as the Southern African variant of the Common Law) and as in
the Common Law tradition, rules of customary international law are part of the law of the land except insofar as
they are inconsistent with the Constitution or some other statute. As has been made clear above, the same is not
true of rules created by treaties: see, for instance, Inter-science Research and Development Services (Pvt) Ltd v
Republic Popular de Mozambique 1980 (2) ZLR 111 (S), and Barker McCormac v Government of Kenya 1983 (2)
ZLR 72 (S).
17
For example in S v Ncube & Others 1987 (2) ZLR 246 (S) the Supreme Court was called upon to interpret section
15 of the Constitution, a Declaration of Rights provision which outlaws torture, inhuman or degrading treatment. In
reaching its decision the court had regard to Article 3 of the European Convention on Human Rights and
Fundamental Freedoms (the European Convention) as interpreted by the European Court of Human Rights. What it
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