Allan Norman Markham v Minister of Justice, Legal and Parliamentary Affairs and Attorney General of Zimbabwe

The applicant approached the High Court seeking a declaratory order and mandamus against the respondents for failing to enact legislation required by section 198 of the Constitution of Zimbabwe. Section 198 falls within Chapter 9 of the Constitution titled 'Principles of Public Administration and Leadership' and requires an Act of Parliament to provide measures to enforce provisions of that Chapter, including requiring public officers to make regular disclosures of their assets, establishing codes of conduct for public officers, specifying standards of good corporate governance for government-controlled entities, and providing for disciplining persons who contravene these provisions. The application was filed seven years after the 2013 Constitution came into effect, and it was undisputed that the obligation under section 198 had not been fulfilled. Section 324 of the Constitution provides that 'All constitutional obligations must be performed diligently and without delay.'

• Whether the respondents breached their constitutional obligation under section 198 read with section 324 of the Constitution by failing to enact the required legislation within a reasonable time
• Who bears the responsibility to carry out the obligation created by section 198 to enact the required Act of Parliament
• Whether non-joinder of other parties involved in the legislative process (Parliament, President, Cabinet) defeats the application
• Whether a mandamus should be granted and within what time frame

1. The first respondent's failure to formulate within a reasonable time a Bill to give effect to the Act envisaged in section 198(a) of the Constitution of Zimbabwe is in breach of section 324 of the Constitution. 2. The first respondent is ordered to gazette the Bill envisaged by section 198(a) of the Constitution of Zimbabwe within three months from the date of this order. 3. The first respondent shall pay costs of suit.

Constitutional obligations created by section 198 of the Constitution must be performed diligently and without delay as required by section 324. A failure to enact required legislation within a reasonable time constitutes a breach of constitutional obligations. A delay of seven years in fulfilling a constitutional obligation to enact legislation is unreasonable. The Minister of Justice, Legal and Parliamentary Affairs and the Attorney General, as part of the executive authority, bear responsibility for initiating and preparing legislation required by the Constitution under section 110(3)(c), and are proper respondents in applications seeking to enforce such constitutional obligations. Non-joinder of other parties involved in the legislative process does not defeat an application where the cited respondents have a role in fulfilling the constitutional obligation. Courts have jurisdiction to grant declaratory orders and mandamus to compel public office bearers to perform their constitutional duties.

The court made observations about how corruption has taken root within public and private institutions and the inadequacy of legal tools to address corruption, though noting the applicant had unnecessarily overloaded his application with voluminous information on this topic. The court commented that the efforts by government to give effect to legislative requirements of the Constitution were commendable, though insufficient given the constitutional requirement of acting without delay. The court also observed that courts should make orders which are realistic of performance, which is why it extended the time period from 45 days to three months for gazetting the Bill.

This case is significant in Zimbabwean constitutional jurisprudence as it enforces constitutional obligations under the 2013 Constitution and holds public office bearers accountable for delays in implementing constitutional requirements. It affirms the justiciability of constitutional obligations and the court's willingness to grant mandamus orders to compel government officials to perform their constitutional duties. The case reinforces the principle that constitutional obligations must be performed 'diligently and without delay' as required by section 324, and that a delay of seven years is unreasonable. It also clarifies the respective roles of the Minister of Justice and Attorney General in initiating and preparing legislation required by the Constitution, particularly regarding good governance and anti-corruption measures. The judgment demonstrates the courts' role in enforcing the rule of law and constitutional supremacy against executive inaction.