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By Sharon Hofisi
The law has for long been seen as an effective tool that is used to resolve conflicts or disputes that arise between or among members of the human community.
It exists in many forms, from private laws on family, succession, contracts; to public laws on criminal, constitutional and administrative issues.
Going through some decided court cases, it becomes clear that courts normally speak about upholding the letter, spirit and purpose of the mother law of the land, the constitution. The letter of the law is usually used to assist the courts to look at the textual analysis of the legal provisions. I can’t belabour followers of my previous letters who read my article in this regard.
The purpose of the law is usually gleaned from the statute or other sources of the law that are used to explain that statute. For instance, a statute usually has a section called the long title which shows the purpose of the law. I may illustrate using the Administrative Justice Act (AJA) in Zimbabwe which shows purposes which include the need to promote fairness, lawfulness, and reasonableness when making administrative decisions.
When a court deals with the purpose of the right to administrative justice which is constitutionally protected in Section 68 of the constitution of Zimbabwe 2013, AJA becomes the starting point. It provides the court with the content which assists the court to determine if doctrines such as subsidiarity, ripeness, mootness, or exhaustion of internal remedies would have been properly followed by litigants.
The Constitutional Court of Zimbabwe resorted to this method when it interpreted marriage rights in the case of Loveness Mudzuru case where it outlawed certain provisions of the Marriage Act which places 16 years as the minimum marriageable years for girls.
It made a finding that the said provisions were at variance with Section 78 of the Constitution which sets 18 years as the age for founding a family. Although founding a family and marriage may be interpreted differently, the court simply used the purpose of the constitutional provisions that distinguish between a child and an adult to design the best ways to protect, promote, respect and fulfil the rights of women.
Section 81 of the Constitution, for instance, defines a child as someone below 18 years. Section 78 of the Constitution uses 18 years to set the age of founding a family. Whether it may make sense or not to argue that girls mature faster than boys, the court simply took the applicants’ view that the Marriages Act was not consistent with the Constitution.
When a court refers to the spirit of the law, usually the Constitution, it uses the living being analogy to interpret constitutional provisions. The Constitution is seen as a living instrument which technically has the souls of the people in a polity; has the body that is reduced to writing or is sometimes partially unwritten and has a spirit that is fuelled by appointed arbiters called judges, magistrates or presiding officers.
The general populace provides it with the soul when it participates in referendums to determine which aspects to be included in it. The Constitution thus becomes the mirror of the souls of the nation. In countries with “unwritten” constitutions, the public’s participation in referendums may easily be split into argumentative ideological camps when dealing with constitutionalism.
Admittedly, the spirit of the constitution may create interpretive irascibilities in a polity, but it remains the sure way of uniting both the letter (textual analysis) and the purposive rules of interpretation. Zimbabwe, for instance, has various constitutional values that are listed in section 3 of the Constitution.
The court interpreting the Constitution must go beyond the purposive rule to include the value-based approach that looks at various aspects which affect our society. A constitution is an extraordinary statute whose living spirit must be interpreted holistically to include other essential elements such as people’s social contract (the preamble); a country’s priority list (national objectives); the fundamental rights and so forth.
In all this, the letter, spirit, and purpose of the Constitution also provide us with the multilateral basis of interpreting the Constitution using other analogies such as the living tree analogy. Each part can be seen as the roots, branches and stems of the tree.
Sharon Hofisi is a lawyer and UZ lecturer.