Mfundo Mlilo v The President of the Republic of Zimbabwe

The appellant challenged the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2016 published as Statutory Instrument 117/2017, arguing they were null and void. He also sought to have the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20], declared unconstitutional, or alternatively to strike down section 2(2) of the Act. The Regulations were made by the President on 15 September 2017 to amend the Electoral Act to accommodate biometric voter registration. The High Court dismissed the application on 4 May 2018, finding the President's law-making power under the Act was constitutional. The appellant appealed to the Supreme Court.

• Whether an appeal from a High Court order of constitutional validity lies to the Supreme Court or directly to the Constitutional Court
• Whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe
• Whether section 2(2) of the Presidential Powers (Temporary Measures) Act constitutes an unlawful delegation of legislative power
• The proper interpretation of sections 167(3), 169(1), and 175 of the Constitution regarding appellate jurisdiction in constitutional matters

The matter was struck off the roll with each party paying its own costs.

An appeal against a High Court order concerning the constitutional validity of legislation lies directly to the Constitutional Court and not to the Supreme Court. Section 169(3) of the Constitution vests the Constitutional Court with final authority to determine whether an Act of Parliament is constitutional. Section 175(3) permits appeals concerning "constitutional validity" (encompassing both validity and invalidity) directly to the Constitutional Court. The Supreme Court, as an appellate court that confirms, varies, amends or substitutes orders from lower courts, lacks jurisdiction to make initial determinations of constitutional validity and cannot itself refer matters to the Constitutional Court for confirmation. Only the Constitutional Court makes final decisions on the constitutional validity of legislation.

The Court noted that section 175(3) was poorly drafted and "garbled" - creating unnecessary confusion about legislative intent. Garwe JA remarked that while one can understand applying directly to the Constitutional Court to confirm an order of invalidity, it is difficult to imagine appealing to confirm an order made in one's favour. The Court emphasized that constitutional interpretation requires a "broad and generous approach" that considers all relevant provisions together, having regard to the Constitution's underlying values, purpose, and context - not merely literal grammatical meaning. The Court also noted that the jurisdictional issue had not previously come before it and was "at worst, moot," justifying the costs order. Importantly, the Court clarified that direct appeals to the Constitutional Court apply only to orders of constitutional validity/invalidity, not to other constitutional matters where the Constitutional Court exercises concurrent jurisdiction with other courts.

This case establishes important principles for Zimbabwean constitutional litigation regarding the proper appellate route for constitutional validity determinations. It clarifies that the Constitutional Court has exclusive final jurisdiction over all questions of constitutional validity and invalidity of legislation, and that appeals from High Court orders on constitutional validity must go directly to the Constitutional Court, not the Supreme Court. The judgment provides important guidance on constitutional interpretation methodology, emphasizing the need for contextual, purposive interpretation that considers all relevant constitutional provisions together. It delineates the boundaries between the Supreme Court's general appellate jurisdiction and the Constitutional Court's specialized constitutional jurisdiction. The decision prevents forum shopping and ensures efficient resolution of constitutional validity questions by routing them directly to the court with final constitutional authority.