Right from the outset, I have been uncomfortable with the absence of a system of appeal to the judgments of the CC. That arrangement brings with it absurd constrictions that remove fundamental pillars of democracy— based on choice and the need for checks and balances. I fail to understand why those who came up with the decision to vest ultimate and sole authority on constitutional matters in the court thought the set up would work for the good of the country and its citizens.
I would have preferred a situation whereby the CC was accorded the status of a court lower than the Supreme Court, so that applicants or respondents would still be able to appeal if they considered a judgement unfair or wrong.
Giving the CC the final say creates confusion in the eyes of ordinary citizens like me, as it produces the impression that the Supreme Court is a bicameral or dual institution, yet, all along, I thought it was a unitary organ.
I don’t see any sense in a person lodging an application with a court and failing to access alternative routes towards justice. It is the same thing as giving citizens no choice in matters legal, and that flies straight in the face of democratic expectations.
What is clear in the debate that followed the May 31 judgement, and given the plethora of interpretations from various legal experts and practitioners – among them the learned dissent by justices Bharat Patel and Luke Malaba – is the subjectivity of the law.
I have learnt that constitutional and statutory provisions are never cast in stone, and the same section can be interpreted to give contradicting conclusions and judgments. That is the essence of, and nobility behind, putting in place a route for appeal that is lacking at the moment.
We often commit a fallacy in our reasoning by assuming that numbers make a thing right. But the truth is that we tend to err in those big numbers. I believe the judgement given by the CC, by virtue of the number of judges who assented, is not sound.
Jesus Christ was crucified because the majority of his persecutors said he was wrong, but that did not make them right. You will also remember that, centuries ago, a man was executed for saying the earth was not flat as most people thought at that time. The majority was later proven wrong.
David Coltart says we have been “helter skelter” in our treatment of the constitution, both old and new, and I agree with him. Individuals and groups of people are making interpretations of the supreme law to suit their own interests and preferences.
I am afraid that there are retrogressive forces out there who will take advantage of the confusion around the CC majority ruling and work to cause political chaos. Loyal readers will remember that, numerous months ago, I warned that there is a coterie in Zanu (PF) that, contrary to its public pronouncements, is dead scared of free and fair elections as that would spell its end. This group of hardliners would seize on any opportunity to create mayhem that would slide the country into political-civil strife in order to preserve its grip on power and the largesse that comes with that.
The hard core is likely to take advantage of the current maze of constitutional interpretations, create despondency and ensure that it remains in power through a second government of national unity. That is a real possibility. Before we know it, differences among political parties will be so sharp as to make a free and fair poll utterly impossible. That will result in a political logjam that even SADC will not be able to solve and, hey presto, in comes GNU 2.
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Post published in: Opinions & Analysis