Minister of Justice, Legal and Parliamentary Affairs & 3 Others v Concilia Chinanzvavana & Anor

The first respondent, Concilia Chinanzvavana, filed an application in the High Court seeking a declaratory order regarding the tenure of the National Peace and Reconciliation Commission (NPRC). She alleged that her constitutional right to equal protection of the law under s 56(1) of the Constitution had been violated by the appellants' failure to enact the NPRC Act in time. The Constitution established the NPRC with a 10-year tenure, but the enabling NPRC Act was only promulgated on 5 January 2018, five years after the Constitution came into effect in 2013. The first respondent claimed this effectively curtailed the Commission's lifespan to only five years. She sought a declaration that the 10-year period should commence from 5 January 2018 when the Act was enacted. The first respondent claimed standing based on alleged torture and detention she and her husband suffered at the hands of state security agents following the 2008 elections, matters she believed the NPRC should investigate. The High Court at Masvingo granted the declaratory order on 13 March 2019, holding that the NPRC should have been established immediately after the Constitution came into effect. The appellants appealed to the Supreme Court.

• Whether the High Court erred in granting a declaratory order without first determining if the applicant's fundamental rights under s 56(1) of the Constitution had been violated
• Whether the applicant had locus standi to bring the application under s 85(1)(a) of the Constitution
• Whether the applicant proved that her right to equal protection and benefit of the law under s 56(1) had been infringed
• Whether the High Court properly considered that the application was brought under s 85(1) of the Constitution
• Whether s 324 of the Constitution (requiring constitutional obligations to be performed diligently) could be invoked when the application was founded on s 85(1)

1. The appeal is allowed with no order as to costs. 2. The judgment of the court a quo is hereby set aside and substituted with: 'The application be and is hereby dismissed with no order as to costs.'

Where an applicant approaches a court under s 85(1)(a) of the Constitution alleging infringement of a fundamental right in Chapter 4, the court is obliged to make specific findings on: (i) whether the applicant has the requisite legal interest in the matter, and (ii) whether the fundamental right alleged has been, is being, or is likely to be violated. A declaratory order made under s 85(1) cannot be granted without such findings - it cannot be made 'in the air'. For a violation of s 56(1) (equality and non-discrimination) to be established, an applicant must prove not only unequal or different treatment, but also that others in the same or similar position have been treated differently or afforded protection/benefits that were denied to the applicant. An application stands or falls on its founding affidavit - the basis of relief must be clearly articulated in the founding papers and cannot be changed or supplemented with alternative legal grounds not pleaded.

The Court observed that in constitutional matters involving allegations of breach of fundamental rights, no order of costs should be awarded against the losing party to ensure that access to courts is not curtailed by issues of costs. This is particularly appropriate where the determinative issue was raised by the court itself rather than by the parties. The Court noted, without deciding, that it was unnecessary to determine whether the High Court's interpretation of s 251 of the Constitution (regarding when the NPRC's 10-year tenure commenced) was correct, as this issue would only arise if there had been a proper finding of breach of s 56(1). The Court also commented that if the respondent's case was based on constitutional invalidity arising from Parliament's failure to enact the NPRC Act with due speed, she should not have approached the court under s 85 of the Constitution, as that provision relates only to vindication of alleged infringement of rights in Chapter 4, not violations of the Constitution under s 324.

This case is significant in Zimbabwean constitutional jurisprudence for clarifying the procedural requirements for applications brought under s 85(1) of the Constitution alleging infringement of fundamental rights. The judgment establishes that courts must make explicit findings on: (i) whether the applicant has the requisite standing/interest, and (ii) whether the alleged fundamental right has actually been or is likely to be violated. The case emphasizes that declaratory orders in constitutional matters cannot be made without proper determination of these threshold issues. It also clarifies the proper interpretation of s 56(1) regarding equality and non-discrimination, requiring proof of differential treatment compared to others in similar positions. The judgment underscores that applications stand or fall on their founding affidavits and that the basis of relief must be clearly articulated. The case also demonstrates that s 324 (requiring diligent performance of constitutional obligations) cannot be invoked to cure an application properly founded on alleged breach of fundamental rights under s 85(1). Finally, the judgment reflects a progressive approach to costs in constitutional matters, declining to award costs against the losing party to ensure access to justice is not impeded.