How much nobler we felt in our undergraduate days when we portrayed the nub of legal realism in the motif, “Law is stable, yet it cannot standstill!” We baulked at the “hang before you appeal” approach to judicial reasoning. And that brings me to my starting point — Chawira and 13 Ors v Minister of Justice and Anor, CCZ3/2017.
There was great surprise when the Concourt, dismissed an important matter that bears on the sanctity of human life. But the surprise was itself surprising if due regard is had to the treatment of one important feature of justiciability of Constitutional rights — ripeness.
All this was because the applicants had not sought review under the Administrative Justice Act (AJA). Neither had they appealed to the Supreme Court nor sought Presidential pardon or commutation under section 48 (2) (e) of the Constitution. Section 48-deals with the right to life — which is listed under Chapter 4 rights-the fundamental human rights Chapter.
Supposedly, this judgment, where nine Concourt justices agreed, illustrates the conundrum that sadly besets people who vest their authority in the courts; a contentious decision, gets to the consumer population, and equally — the population struggles with its legitimacy — especially after the Concourt’s progressive strides in the Mudzuru and Anor v Minister of Justice and Others case.
Briefly, the judgment refers to Chawira and others as “condemned prisoners on death row awaiting execution after being sentenced to death by the High Court. They have been on death row for varying periods of time ranging from two to 18 years of incarceration”.
Their remedy was; (the) sentence of death be quashed and determination of the appropriate substituted punishment for each applicant be remitted for hearing.
There were two issues for determination — ripeness of the matter and whether the delay in carrying out the death sentences is a violation of the applicants’ fundamental human rights — human dignity and freedom from torture or cruel, inhuman or degrading treatment.
The fulcrum of the court’s reasoning revolved around the legal concept of ripeness.
The author of the judgment, Constitutional Court Judge (CCJ), Justice Bhunu, considered the Constitution to be the mother of all laws of our land.
Surprisingly, when he dealt with the issue of review, he ended on the conduct of prison officials. Do not ask me why, but suddenly the answer is they are part of the State which the judge appreciates “has no capacity to employ a hangman”.
Although the arguments of the court on the need to exhaust other remedies is unequalled, this is not a matter where the Concourt was supposed to skirt the constitutional issues and dwell on alternative remedies. The reasons are copious.
Broadly, the court narrowly interpreted the doctrine of ripeness. Basically, the elements of ripeness are three-pronged: Ripeness qua premature action, failure to exhaust other remedies, and matters that can be resolved without raising constitutional issues.
The first pillar is used to describe situations where litigants would have come too early to only raise hypothetical or abstract questions before a superior court, or a court as last resort.
The Concourt did not deal with this pillar and its silence acquiesces with the fact that the matter was not abstract, and the Concourt was obliged to proceed in terms of section 167 of the Constitution.
Further, the Concourt dwelt at length on the other pillar — failure to exhaust other remedies. Case authorities within our jurisdiction, Zimbabwe, were cited. Even so, we should not delude ourselves that in constitutional matters — this is the end of the matter.
The judge is obliged to start, from the common law position, which gives him a discretion, in the interests of justice, to proceed to hear an unripe matter. There was need for a clear explanation by the Concourt as to why such discretion could not be exercised in a case. Anything else is neither here nor there.
For instance, the interests of justice demand that ripeness be treated in relation to legal standing. The Concourt was alive to this fact when it indicated that the application was made in terms of section 85 — the legal standing provision.
Jurisprudentially, ripeness is linked to standing and mootness, and the three aspects form part of procedural justiciability.
Under ripeness, the court, must deal with the timing of a claim and the identity of the person bringing the claim (Loots as cited in Woolman and Bishop, 2013) (emphasis added).
Under section 85, focus on the claimant shows that competent courts can do away with dirty hands, and the need to dwell on procedural formalities. The Concourt ended up bringing the dirty hands doctrine which the Constitution outlaws.
Next, before considering ripeness as a procedural barrier to the hearing of a case, a court is enjoined to identify the identity of the person (the inmates set to face the hangman’s noose) who is bringing the claim (challenge to death penalty) before it.
The over-reliance of the Concourt on the timing of the claim does not give the Concourt a legal alibi; rather, it questions why the court failed to exercise its common law discretion to come up with a theory of justice which is “in the interests of justice”.
The “interests of justice” is all – encompassing — it chiefly includes the interests of the inmates themselves, and the society at large. In a constitutional rights sense, a hypothetical invention of a super-judge, Justice Hercules, was needed in crafting a theory of justice.
Further, the Concourt was with respect, wrong in interpreting its hierarchical link to the Supreme Court. While the SC is the apex Court in appellate and review procedures, the Concourt is an apex court in Constitutional matters.
Further, the section on presidential pardon is a matter of right, not procedure. The Concourt must regulate its own procedure in terms of section 176 of the Constitution. What will happen to the protection of constitutional rights after the artificial connection?
In the immediate term, Loots (bid) would argue that the rationale behind the ripeness requirement is to enable courts to avoid becoming entangled in abstract disagreements with other branches of government. The Concourt rightfully spoke about backlogs, but having failed to decide on the abstract or otherwise of the application, then cadit quaestio.
For a long time, the judgment creates doctrinaire judges. The Chawira decision is, and shall remain, a failed experiment on the use of the doctrine of ripeness in Constitutional issues.
Principally, judges in most juridical systems have been inventive and broadly interpreted ripeness. In Transvaal Coal Owners Association v Board of Control, 1921 TPD 447, 452, a case cited by Loots (ibid), the court started from the usual position to refuse to grant a declaratory order to solve hypothetical problems and abstract questions. It then proceeded to the exception to this rule which is invoked, particularly in situations where the rights in question have actually been infringed.
Predictably, the court in the Transvaal case refused adopt an approach where the applicants in that case would have to wait to do certain things or to abstain from doing certain things, which otherwise, they were at perfect liberty to do or to abstain from, so that they would test the validity of the order, and have it decided whether you are liable to the penalty or not.
Added to this is the fact that “the criterion by which ripeness is to be measured is whether prejudice has already resulted or is inevitable, irrespective of whether the action is complete or not” (Baxter 1984: 720).
There is manifest prejudice when one is made to wait on death roll for 18 years; goes to court, and is told to go back and correct some procedure; when the court accepts that there is prejudice.
With all due respect, ripeness only becomes an issue when the person bringing the action has not yet been affected by the unlawfulness of which he complains. The Concourt was enjoined to follow the duties expected of courts in section 46 of the Constitution.
Under international law for instance, right to life must not be narrowly interpreted. The Human Rights Committee (2002) states that the inherent right to life cannot be properly understood I a restrictive manner, and the protection of this right requires that States adopt positive measures.
No wonder ripeness is usually interpreted together with locus standi-see Cabinet of the Transitional Government for the Territory of South West Africa v Eins, 1988 (3) SA 369.
The third pillar relates to issues which can be resolved without recourse to the Constitution (Loots, 2013). In Zimbabwe, section 176 of the Constitution is instructive in this regard. In terms of that section, Judges of the High Court, Supreme Court, and Concourt are all constitutionally obliged to develop the common law of Zimbabwe.
Under the common law, a judge is clothed with power to exercise his discretion when faced with an unripe matter. This discretion should however be exercised judiciously in the interests of justice.
The common law has a strong underlying presumption of equality of all citizens before the law. No attempt was made in this regard as alluded to above. It therefore, follows that this was a matter which the Concourt was supposed to hear the matter in terms of section 167 of the Constitution.
Even if it were to be said that the litigants did not refer to the common law position, judges can still do so in the interests of justice. Roman Dutch law (RDL) — as part of Zimbabwe’s common law, was described in Pearl Assurance Company v Union Government, (1934) A.C 570, 579 as “a virile living system of law, ever seeking, as every such other system, to adapt itself consistently with its inherent basic principle to deal effectively with the increasing complexities of modern organised society”,
Zimbabwe’s legal system is a mixed one — blending the English common law, RDL and its own. Citing the common law is important. Rajak (2011: 48) for instance, refers to an appeal against finding in Mapenduka v Ashiton, 1918 EDL 299, where one appeal judge after another referred to old authorities, going back to the emperor Constantine, and consider the Justinian Code and then moving seamlessly through RDL before referring to civil law jurists in France and Germany, including Carpzovius’s Law of Saxony, Thoasius, Huber, Van Gluck and Pothier.