Heal Zimbabwe is a human rights organization focused on national peace, reconciliation and healing. In May and June 2008, there was massive violence in Mashonaland Central during the runoff election in the Chaona area, resulting in deaths, torture and severe assaults. In April 2023, the applicants brought case HC2849/23 seeking to compel the Zimbabwe Human Rights Commission (ZHRC) and the National Peace and Reconciliation Commission to investigate the 2008 violence. The ZHRC responded that it had no power to investigate incidents occurring before 13 February 2009 due to s 9(4)(a) of the Zimbabwe Human Rights Commission Act, which prohibits investigation of complaints made more than three years after the incident or occurring before 13 February 2009. The applicants then brought this constitutional challenge seeking to declare s 9(4)(a) unconstitutional as being ultra vires s 243 of the Constitution and violating rights to truth, access to information (s 62) and equal protection (s 56). The second applicant, Hilton Chironga, an alleged victim of the violence, withdrew his application.
The application was struck off with no order as to costs.
Section 2 of the Constitution is a substantive provision declaring the supremacy of the Constitution but does not by itself bestow jurisdiction on courts to declare laws invalid. The procedural route to enforce the supremacy of the Constitution and to have a law declared unconstitutional when seeking to enforce fundamental rights is found in section 85 of the Constitution. An application seeking to have a law declared unconstitutional on grounds that it violates fundamental rights in Chapter 4 must be brought under section 85(1) of the Constitution, not section 2.
The court made observations on locus standi, noting that while the test for legal standing in constitutional matters is broader than the common law requirement of direct and substantial interest, an applicant claiming to act in the public interest must properly demonstrate this. Where an applicant seeks to act on behalf of a specific class or group of people (such as victims of violence in a particular area), the appropriate mechanism is a class action under s 85(1)(c) rather than public interest litigation. The court also noted that the third respondent (Parliament) was merely cited for its interest with no relief or costs claimed against it.
This case is significant in Zimbabwean constitutional law (though not South African law - this is a Zimbabwean High Court judgment) as it clarifies the proper procedural route for constitutional challenges. It establishes that while the supremacy clause in s 2 of the Constitution is substantive law declaring inconsistent laws invalid, it does not provide a standalone procedural mechanism. Constitutional challenges alleging violation of fundamental rights must be brought under s 85 of the Constitution. The case also reinforces requirements for establishing locus standi in constitutional matters and distinguishes between public interest litigation and class actions. It demonstrates judicial reluctance to overlook procedural defects even in cases involving serious human rights concerns such as torture and political violence.